“Exam” by albertogp123 is licensed under CC BY 2.0. https://www.flickr.com/photos/57280691@N02/5843577306
By: Phoebe Howe | Senior Notes Editor
November 20, 2023
—
For third-year law students, the bar exam culminates years of law school and ten weeks of intensive study. Yet the mechanical exam is incompatible with a profession where lawyers rely on strong interpersonal and communication skills. And no evidence proves that the exam ensures minimum competence or protects the public. Instead, test takers face a redundant, dehumanizing exercise that is rooted in elitism and turns on one’s wealth. In response to the bar exam’s deficiencies, Vermont should reform its Rules of Admission to adopt one or more “diploma-plus” pathways to bar admission.
Bar admission practices arose from elitist origins. Starting in the early 20th century, the American Bar Association engaged in a systematic effort to maintain an elite cadre of lawyers through tools such as the bar exam and law school accreditation standards.[1] This desire for “professionalism” was indisputably mixed up with racist motivations.[2] Leaders within the legal community held nativist views, were made aware of the discriminatory impacts of their actions, and continued to alienate poor, immigrant, and non-white law students anyways.
While blatant discrimination is less rampant than 50[3] or 100[4] years ago, the bar exam perpetuates systemic racism today. In 2021, 85% of white law school graduates passed the bar exam on their first try, whereas only 61% of Black graduates did.[5] Two broad theories offer insight into how systemic racism creates the bar passage gap between white and minority test takers. The first theory is that as long as the racial wealth gap persists, the bar exam will continue to privilege white test takers over test takers of color. The second theory is that implicit bias in law school and the pressure of the bar exam may evoke “stereotype threat” that hinders students of color from performing at their full potential.[6]
The bar exam perpetuates systemic classism. The ten-week period between law school graduation and the July bar exam is expensive, and graduates who attempt to work and study simultaneously do markedly worse on the exam.[7] In addition to living-related costs, graduates must budget for prep courses (starting at $2,000)[8] and bar application costs (which can be $1,000 or more).[9] Moreover, states generally hold bar exams in population centers,[10] meaning rural test takers must also pay for travel, lodging, meals, and childcare. Given the staggering costs associated with the bar exam, it is no surprise that graduates with more financial resources do better on the test.[11] Bar passage has become a proxy for wealth.
In addition to perpetuating systemic racism and classism, the bar admission process exacerbates access to justice issues. The legal community designed bar admission requirements, including the bar exam, to keep the bar small and maintain high prices.[12] Although bar admission operates with the goal of consumer protection,[13] excessive requirements may harm consumers by limiting competition[14] and increasing the cost of services.[15] Vermont is not immune from this problem. The state strives to provide free or low-cost advice and representation on critical matters,[16] but thousands of Vermonters go unrepresented in serious civil proceedings.[17] And due to lawyer shortages in rural areas,[18] some Vermont criminal defendants receive low-quality or delayed representation.[19]
Furthermore, the bar exam does not ensure attorney competency. The National Conference of Bar Examiners’ organizational vision includes fostering a “competent” legal profession.[20] Yet, the multiple-choice and essay portions of the exam test memorization skills more than legal knowledge and analysis. Memorization is not part of competent legal practice.[21] Competent lawyers double-check their assumptions, do additional research, and talk to colleagues. Legal practice revolves around handling ambiguity and making judgment calls. Multiple-choice questions and formulaic essays cannot reflect this reality.
A final reason for Vermont bar admission reform is that Vermont and its legal workforce face troubling demographic challenges. First, Vermont’s lawyers are aging. Vermont has the third-highest median age in the country,[22] and half of Vermont’s lawyers are over 55.[23] Many retiring lawyers cannot find young graduates to take over their businesses.[24] Second, Vermont is one of the least racially diverse states in the country.[25] Assuming that lawyers of color are as underrepresented in Vermont as they are nationally,[26] there may be as few as 11 Black lawyers, 15 Hispanic or Latinx lawyers, and three Native American lawyers out of Vermont’s 2,198 total lawyers.[27]
Other states have forged the path toward bar admission reform. Wisconsin allows bar admission by diploma privilege: if a student successfully graduates from one of the state’s law schools, there is no bar exam requirement.[28] New Hampshire’s Daniel Webster Scholar Honors Program adds experiential learning to a standard law school curriculum and eliminates the traditional bar exam.[29] Oregon is about to implement experiential and supervised practice programs.[30]
Vermont should build on other states’ work and adopt one or more “diploma-plus” bar admission pathways:
A diploma-plus-GPA pathway would build on the strength and simplicity of Wisconsin’s diploma privilege. The Board of Bar Examiners should work with Vermont Law and Graduate School to set a GPA requirement that guarantees minimum competence. Instead of pure diploma privilege, the GPA requirement is necessary because Vermont Law and Graduate School administrators are not confident that the school’s 2.3 GPA requirement for graduation adequately screens for minimum competence.[31] The GPA calculation should include only required courses, most of which are curved, to avoid concerns about grade inflation.[32]
An experiential program based on New Hampshire’s Daniel Webster Scholar Honors Program[33] would allow students to complete bar admission requirements via practical classes. The program would amount to a rigorous “two-year bar exam” with frequent assessments[34] and a final presentation to the Board of Bar Examiners.[35] Vermont stakeholders have expressed interest in an experiential program because lawyers find it difficult to train new hires and want practice-ready graduates.[36] Vermont Law and Graduate School faculty and administration[37] and Vermont’s Joint Commission on the Future of Legal Services[38] agree that Vermont should consider experiential learning as an alternative licensure path.
A supervised-practice pathway would allow bar applicants to establish competence by completing a certain period of paid, supervised work. Other professions, such as the medical field, rely heavily on the apprenticeship model, as did the legal profession before the standardization of law schools.[39] Applicants would complete a certain number of hours and compile a portfolio of work product to present to the Board of Bar Examiners.[40]
As rising awareness of the bar exam’s elitist origin and gatekeeping effect spurs the national bar admission reform movement, many states seek to implement permanent reform measures. By reforming bar admission with diploma-plus pathways, Vermont can simultaneously eliminate discriminatory bar admission practices and serve the public with a competent attorney workforce that more accurately reflects the diversity of our communities.
[1] Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s 96–97 (1983).
[2]Id. at 92; Although the European immigrants of the early 1900s would be considered white today, at the time “whiteness” was narrowly construed to include only people of Anglo-Saxon heritage and Protestant religious beliefs. Thus, racism is an appropriate term to describe anti-immigrant efforts. Xenophobia: Closing the Door, The Pluralism Project, Harv. Univ., https://pluralism.org/xenophobia-closing-the-door (last visited Mar. 13, 2023).
[3] For example, South Carolina abolished reciprocity in 1972 right after a Black lawyer from Oklahoma applied for reciprocal admission. Richardson v. McFadden, 540 F.2d 744, 746–47 (4th Cir. 1976).
[4] Adjoa Artis Aiyetoro, Truth Matters: A Call for the American Bar Association to Acknowledge Its Past and Make Reparations to African Descendants, 18 Geo. Mason U. Civ. Rts. L.J. 51, 72 (2007).
[5] ABA, Summary Bar Pass Data: Race, Ethnicity, and Gender (2022), https://www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/statistics/2022/2022-bpq-national-summary-data-race-ethnicity-gender-fin.pdf.
[6] Deborah Jones Merritt, Carol L. Chomsky, Claudia Angelos, & Joan W. Howarth, Racial Disparities in Bar Exam Results—Causes and Remedies, Bloomberg L. (July 20, 2021), https://news.bloomberglaw.com/us-law-week/racial-disparities-in-bar-exam-results-causes-and-remedies. Results from a 2021 AccessLex study of over 5,000 bar exam takers supports this conclusion. Email from Deborah Jones Merritt, Professor, Ohio State University Moritz College of Law, to author (Jan. 2, 2023, 08:10 EST) (on file with author) (interpreting statistical analysis in AccessLex Inst., Analyzing First-Time Bar Exam Passage on The UBE in New York State 81 (2021), https://www.accesslex.org/NYBOLE).
[7] Logan Cornett & Zachariah DeMeola, The Bar Exam Does More Harm Than Good, Inst. for the Advancement of the Am. Legal Sys. (Aug. 2, 2021), https://iaals.du.edu/blog/bar-exam-does-more-harm-good; AccessLex Inst., supra note 6, at 15.
[9] Nat’l Conf. of Bar Exam’rs & ABA Section of Legal Educ. & Admissions to the Bar, Comprehensive Guide to Bar Admission Requirements 34–35 (2021).
[10] For example, Vermont often holds its exam in Burlington. Admission to the Vermont Bar, Vermont Judiciary, https://www.vermontjudiciary.org/attorneys/admission-vermont-bar (last visited Nov. 5, 2023).
[12]See George B. Shepherd, No African-American Lawyers Allowed: The Inefficient Racism of the ABA’s Accreditation of Law Schools, 53 J. Legal Educ. 103, 147 (2003) (discussing effect of law school accreditation on access to and affordability of legal services).
[13] Interview with Beth McCormack, Dean, Vt. L. Sch., in South Royalton, Vt. (Sept. 19, 2022).
[14] Deborah Jones Merritt & Logan Cornett, Building a Better Bar 5 (2022).
[15] Benjamin Hoorn Barton, Why Do We Regulate Lawyers?: An Economic Analysis of the Justifications for Entry and Conduct Regulation, 33 Ariz. St. L.J. 429, 441 (2001).
[16] Vt. Access to Just. Coal., Renewing Vermont’s Commitment to Access to Justice 1 (2020), https://legislature.vermont.gov/ (search for “Renewing Vermont’s Commitment to Access to Justice” report).
[17] In one year, the need included about 1,500 tenants facing eviction, 4,000 customers facing credit-card collections, and 1,300 spouses seeking a divorce. Id. at 2.
[19]See, e.g., id. (describing how client’s plans to expand nonprofit organization were delayed when lawyer allegedly failed to address misdemeanor charge); Justin Trombly, NEK Judge Throws Out Drug Conviction, Rules Public Defenders Failed, VTDigger (July 26, 2021), https://vtdigger.org/2021/07/26/nek-judge-throws-out-drug-conviction-rules-public-defenders-failed/ (describing how court vacated client’s drug conviction for ineffective assistance of counsel).
[22]Median Age in 2021, StatsAmerica, https://www.statsamerica.org/sip/rank_list.aspx?rank_label=pop46&ct=S09 (last visited Nov. 5, 2023).
[23] Vt. Bar Ass’n, 2020 VBA Members by Age (2020) (on file with author).
[24] Vt. Joint Comm’n on the Future of Legal Servs., Final Reports & Recommendations of the First Year Study Committees 45 (2015) (on file with author); see, e.g., M.D. Drysdale, Where Have All the Lawyers Gone?, Herald of Randolph (Aug. 13, 2015), https://www.ourherald.com/articles/where-have-all-the-lawyers-gone/.
[25] Wilson Ring, Census: Minority Population Growing in VT, 2nd Whitest State, AP (Aug. 12, 2021), https://apnews.com/article/race-and-ethnicity-census-2020-vermont-721d8201122a857b4565b4a37bd77d24.
[26] Nationally, Black (4.5% of lawyers and 13.4% of population), Hispanic or Latinx (5.8% of lawyers and 18.5% of population), and Native American lawyers (0.5% of lawyers and 1.3% of population) remain underrepresented. The share of Asian American lawyers is about the same as the general population (5.5% of lawyers and 5.9% of population), and white lawyers are dramatically overrepresented (81% of lawyers but only 60% of population. ABA Survey Finds 1.3M Lawyers in the U.S., ABA (Jun. 20, 2022), https://www.americanbar.org/news/abanews/aba-news-archives/2022/06/aba-lawyers-survey/.
[33]Daniel Webster Scholar Honors Program, Univ. of N.H. Franklin Pierce Sch. of L., https://law.unh.edu/academics/daniel-webster-scholar-honors-program (last visited Nov. 5, 2023).
[34] John Burwell Garvey & Anne F. Zinkin, Making Law Students Client-Ready: A New Model in Legal Education, 1 Duke Forum for L. & Soc. Change 101, 122 (2009).
[35] Alli Gerkman & Elena Harman, Ahead of the Curve—Turning Law Students into Lawyers 10 (2015), https://iaals.du.edu/sites/default/files/documents/publications/ahead_of_the_curve_turning_law_students_into_lawyers.pdf.
[36] Vt. Joint Comm’n on the Future of Legal Servs., supra note 24, at 32.
[37] Interview with Jessica Durkis-Stokes, Professor, Vt. L. Sch., in South Royalton, Vt. (Sept. 1, 2022); Interview with Beth McCormack, supra note 13.
[38] Vt. Joint Comm’n on the Future of Legal Servs., supra note 24, at 32.
[40] Oregon plans to require a portfolio of non-privileged work product. Memorandum from the Alternatives to the Bar Exam Task Force to the Oregon State Board of Bar Examiners 23 (June 18, 2021), https://taskforces.osbar.org/files/Bar-Exam-Alternatives-TFReport.pdf.
In the fall of 2022 the Oregon Court of Appeals affirmed the dismissal of a per se negligence claim based on a violation of a state animal welfare statute.[1] Notably, the named plaintiff for the civil claim was the horse who had been neglected, Justice.[2] The lower court dismissed the claim, holding that animals do not have standing to sue because they are not legal entities.[3] The appellate court affirmed, holding that there was no procedural method that would allow for third-party standing on behalf of an animal, and also that animals are not legal persons and therefore lack standing to sue.[4] The court interpreted Oregon’s criminal animal neglect statute as qualifying the rights of animal owners, rather than creating substantive rights in animals.[5] In contrast, the plaintiff asserted that the animal welfare statute created a right in the animal to receive a minimum standard of care, civilly remediable through a per se negligence action. The court instead viewed animal welfare statutes as a manifestation of animal owners’ duty to the state.[6] Ultimately, the court regarded the question of legal personhood for animals as a public policy choice best left to legislative determination.[7] However, the precedent cited by the court in holding against a theory of animal guardianship is not as straightforward as the opinion suggests.
To begin, the court held that legal guardianship is not available for animals because animals’ interests are not discernable.[8] However, by enacting animal welfare statutes, legislatures implicitly recognize humans’ ability to recognize animal preferences. Indeed, the Oregon Court of Appeals acknowledged that “animals are sentient beings . . . and should be cared for in ways that minimize pain, stress, fear, and suffering.”[9] Mindful of that, the court then explained that guardianship ad litem or analogous procedural devices would be inappropriate for animals because those seeking to represent animals might have ulterior motives.[10] The court relied heavily upon a case in which PETA pursued a copyright claim on behalf of a monkey to underscore the potential for abuse of animal guardianship procedures.[11] In that case, however, the Ninth Circuit held that PETA had not made a factual showing of a significant relationship with the monkey sufficient for “next friend” third-party standing.[12] Thus, even in the context of a monkey’s copyright claims, the plaintiff’s case did not fail for lack of ability to discern the animal’s interests, or even for a lack of ability to discern who would most faithfully pursue those interests: the claim failed because PETA did not allege adequate facts.[13]
In fact, the court in Naruto determined that the monkey had established Article III standing sufficient to survive a 12(b)(6) motion to dismiss.[14] In addition to the factual inadequacy, PETA could not establish third-party standing as a “next friend” because “next friend” standing is statutorily created and thus Congress would have clearly indicated an intent to create a cause of action for animals to invoke copyright protection.[15] Nevertheless, the Ninth Circuit then explained the court’s duty under Federal Rule of Civil Procedure 17 to ensure adequate representation of incompetent parties, including the appointment of guardians ad litem if necessary.[16] Thus, if Justice adequately pled a case of negligence per se, Naruto would actually stand for the proposition that the Oregon Court of Appeals was under a duty to ensure his adequate representation under analogous state procedural rules.[17] Furthermore, in the context of animal neglect or abuse, the fact-finding process to determine the person best suited to pursue the animal’s interests would have a presumptive candidate: the new owner.
Recognizing third-party standing for animals would undoubtedly be a contentious step in the development of the common law.[18] Nonetheless, the Naruto opinion, which declined to extend next-friend standing to animals on statutory interpretation grounds,[19] implies the possibility of case-specific, fact-reliant common-law third-party standing for animal plaintiffs rather than a blanket skepticism of people’s ability to pursue animals’ interests in good faith. A negligence per se claim for animal neglect presents a case in which that fact-finding would be simplest, from the standpoint of discerning both the animal’s interest, and the legal person best suited to advance that interest. A common-law expansion of animal standing would also make the most sense in the tort-law context, given the judge-driven development of the field.[20]
On a different note, the Oregon Court of Appeals’ focus on conditional animal ownership suggests the possibility of framing animals’ civil claims similarly to honorary trusts, a common-law creation that allowed pet owners to bequeath part of their estates to beneficiary pets, despite the pets’ inability to enforce the trust.[21] If the state grants animal ownership in trust, with the duty of the owner to provide a minimum level of care, third-party representation of the animal by a successor trustee (owner) could actually be a fiduciary duty.[22]
[1]Mosiman ex rel. Just. v. Vercher, 321 Or. App. 439 (2022), review denied, 524 P.3d 964 (2023).
[19]Naruto, 888 F.3d at 425–26 (citing Cetacean Cmty., 386 F.3d at 1179).
[20]See generally Caroline Forell, Statutory Torts, Statutory Duty Actions, and Negligence Per Se: What’s the Difference?, 77 Or. L. Rev. 497 (1998) (discussing Oregon tort-law development as influenced by statutes and how “a court should consider providing a statutory duty action, such as negligence per se, to further the purposes of the statute” when the statute is “focused” on specific types of harms and victims).
[21]See generally Emily Gardner, An Ode to Roxy Russell: A Look at Hawaii’s New Pet Trust Law, Haw. B.J., Apr. 2007, at 30 (discussing the evolution of honorary trusts in the context of Hawaiian legislation covering the subject).
[22] Eric A. Manterfield, Shelter from the Gathering Storm: Protection for Trustees (and Estate Planners!) Facing Fiduciary Challenges (2015) (“Many states provide that a successor trustee becomes liable for a breach of trust by a predecessor trustee if the successor trustee fails to make a reasonable effort to compel a redress of a breach of trust committed by the predecessor trustee.”).
Migrant farmworkers populate remote areas when they work for corporate farms in the United States.[1] The isolated nature of farmwork is conducive to the occurrence of sexual harassment.[2] So is the physical nature of farmwork because it involves putting one’s body in vulnerable positions that perpetrators of sexual harassment may take advantage of.[3] These elements, combined with the unique challenges that immigrants face, blend to create a precarious situation for farmworkers.[4] Just one woman’s story can illustrate the pains of many who experience sexual harassment when working for a corporate farm in America.[5]
Olivia Tamayo was a farmworker for Harris Farms in the 1990s and early 2000s.[6] Her supervisor raped her multiple times, threatening her into silence at gunpoint.[7] Ms. Tamayo’s bravery brought her to court, where she was awarded nearly $1 million in damages at the outset.[8] While on the surface, this seems like a win for the migrant-farmworker community, the benefits of compensation cannot outweigh the moments of her life lost to fear, instability, and suffering. To varying degrees, the majority of women migrant farmworkers can relate to Ms. Tamayo’s narrative—nearly 80 percent of female migrant farmworkers experience sexual harassment on the job.[9]
Despite the extreme nature of Ms. Tamayo’s personal experience with sexual harassment, there is a silver lining to the outcome of her case. Ms. Tamayo’s request for relief articulated a remedy that looks very similar to the requirements under Title IX,[10] which governs the prohibition on sexual harassment in educational settings. Title IX is probably best known for requiring the designation of at least one Title IX Coordinator on campuses of federally funded educational institutions.[11] This means that if a school receives federal funds, they must use those funds to maintain compliance with Title IX.[12] The underlying policies here are to prevent federal funds from being used for discriminatory purposes and to ensure access to effective measures that will protect students from sexual harassment.[13]
Farm labor is increasingly unregulated, and the informal setting places farmworkers in a very vulnerable circumstance not only with regard to experiencing sexual harassment, but also with regard to their livelihood.[14] However, Ms. Tamayo’s request illustrates what could be an effective means of preventing sexual harassment in the workplace, especially on corporate farms that receive direct government subsidies.[15] Corporate farms, like all employers, must follow requirements provided by Title VII of the Civil Rights Act, which prohibits sexual harassment as a form of discrimination on the basis of sex.[16] Although employers can be held vicariously liable for the misconduct of supervisors,[17] as was the case in Ms. Tamayo’s lawsuit, it is difficult to pursue litigation in most instances of sexual harassment because of the high barriers to reporting.[18]
There are several ways to deepen the negligence standard that corporate farm employers must abide by in sexual harassment cases. First, the definition of sexual harassment should be clarified and aligned with other statutes, such as Title IX and the Violence Against Women Act.[19] Second, the requirement that victims must take reasonable steps to abate the danger of sexual harassment should be eliminated.[20] Third, as part of employers’ requirement to prevent sexual harassment under Title VII, corporate farms should designate a Title VII Coordinator, identify and implement supportive measures, and develop a grievance procedure that preserves the due process rights of the involved parties.[21] The amended final rule of Title IX, promulgated in 2020, ensures fairness due to both victims and the accused and also requires institutions to think proactively about the measures that can be taken to promote a safe environment.[22] The role of the Title IX Coordinator creates the presence of a neutral party who can work to shift the workplace culture by ensuring a safe environment is maintained for all.[23]
By adopting these requirements, Title VII could be developed into a much more effective rule. As Ms. Tamayo’s case demonstrated, farmworkers need greater accessibility to a reliable source of help, and this is exactly what these improvements would accomplish. Such changes would work to prevent sexual harassment from occurring in the first place, both reducing liability for corporate farms and, most importantly, eliminating the normalized injustices done to farmworkers on a regular basis.
[1] Julie Solis-Alvarado, From Fields of Opportunity to Fields de Calzones: Workplace Sexual Violence in America’s Agricultural Industry, 25 Drake J. Agric. L. 293, 303 (2020).
[5]See generally EEOC v. Harris Farms, Inc., No. CIVF02-6199 AWI LJO, 2005 WL 3039204 (E.D. Cal. Sept. 30, 2005) (detailing the incidences of sexual harassment Ms. Tamayo faced while working at Harris Farms).
[6] Appellant’s Opening Brief at 15–16, EEOC v. Harris Farms, Inc., 274 F. App’x 511 (9th Cir. 2008) (Nos. 05-16945, 06-16317).
[17] Ida L. Castro, Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors (June 18, 1999) https://www.eeoc.gov/laws/guidance/enforcement-guidance-vicarious-liability-unlawful-harassment-supervisors.
[18] Hum. Rts. Watch, Cultivating Fear: The Vulnerability of Immigrant Farmworkers in the US to Sexual Violence and Sexual Harassment 67 (2012).
[22]See generally 34 C.F.R. § 106 (detailing how educational institutions receiving federal financial aid can comply with requirements regarding unlawful sex discrimination).
[23]See 34 C.F.R. § 106.44(a) (detailing the steps the Title IX Coordinator must take when he or she receives notice of sexual harassment).
Environmental justice aims for a fair treatment of environmental protection and “equal access to the decision-making process[es]” for everyone—regardless of race, culture, or income.[1] Low-income and racial- and ethnic-minority communities have been, and are, significantly and unfairly impacted by environmental and public health stressors without meaningful input in government decision making.[2] The federal and state governments have continued to acknowledge environmental justice issues. Yet, there is still a lack of legislation that will significantly contribute to an efficient solution—one that not only repairs decades of damage but establishes a system to preven
t further despair. To avoid continued inequality, environmental justice legislation must recognize the implications of agency deference—those that contributed to these disparities in the first place.[3] Future environmental justice legislation should follow New Jersey’s Environmental Justice Law (the Law) with two key differences: defining compelling public interest and directing a stricter standard of review, minimizing deference to agency misinterpretation.
The Law directs the New Jersey Department of Environmental Protection (the Department) to deny a facility’s permit application if there is a finding of disproportionate impact on a designated overburdened community after assessing both the facility’s statement and community input.[4] However, if the facility can demonstrate the proposal has a “compelling public interest” the Department can attach conditions to the permit to reduce the adverse impact.[5] This compelling public interest exception is not defined in the statute and the legislature did not provide guidance on the conditions or limitations the agency may impose.[6] The statute directs the Department to issue rules in accordance with the Law as they see fit for its implementation.[7]
The Law is revolutionary because it was the first to require agency action.[8] The Law appears to surpass the typical balancing test and is not merely the legislature’s or agency’s best intention to protect the environment or hope that a choice will be made in favor of reducing adverse impacts.[9] Nevertheless, upon closer examination of each of its individual parts, the Law is another outcome-determinative balancing test—which public health interest is more compelling?
Each facility and permit applicable under the Law could very well serve a compelling public interest in s
ome capacity, even without considering economic factors such as whether the facility will provide employment opportunities to the community.[10] The exception is provided to account for some emissions that may be necessary despite the disproportionate impact because there is some other impact which supersedes potential adverse health stressors. Without a definition, the term is vague and open to various, and equally legal, interpretations. Although the Department provides more guidance in the proposed rules for the definition of compelling public interest,[11] the exception will require the Department to balance the interests of public health for each permit review and when the agency approves or rejects a permit under this exception, judicial review will be limited.
Reviewability will be limited because the standard for reviewing agency decisions is one based on reasonableness; the standard is whether an agency acted arbitrarily and capriciously.[12] So, once permits are either approved or denied, the reviewability of these decisions will be minimal because a reviewing court is unlikely to find that the agency acted arbitrarily and capriciously.[13] Therefore, by including an undefined exception, the Law aligns with most environmental protection and environmental justice statutes.[14] A classic example starts with The National Environmental Policy Act (NEPA).[15]
NEPA requires all federal agencies to consider adverse environmental impacts and to prepare an environmental impact statement for “all major federal actions that significantly affect[] the quality of the human environment.”[16] Agencies must use a balancing test: weighing the costs and adverse environmental impacts with the benefits including alternative solutions to proposed projects.[17] But, NEPA does not require the environment to win or require agencies to consider or balance adverse social impacts.[18] But when courts are reviewing actions under NEPA, the standard of review is slightly heightened.
In Calvert Cliffs Coordinating Committee, Inc. v. United States Atomic Energy Commission, the court recognized some agency decisions, such as those made under NEPA, qualify for more than a rational basis review.[19] The court reasoned that environmental protection deserves more than a reasonableness standard because NEPA sets a high standard for agencies.[20] The court concluded that since the substantive duties of NEPA required careful and informed decision making, the standards are far from flexible.[21] It was the court’s judicial duty to make the purpose of NEPA a reality.[22] New Jersey courts have yet to apply this reasoned review.
Similar to NEPA, the Law requires the Department to balance competing public interests.[23] While the exception will prove necessary in certain circumstances, and should not be removed, the undefined exception leaves too much leeway for agency decision making that could drastically sway with political changes in the executive branch. The undefined exception provides the Department an opportunity to interpret the exception as overly broad or overly narrow. If the former is adopted, the Law, and the reason it was enacted in the first place, would be swallowed. Without clear intent from New Jersey’s Legislature, courts will award that interpretation great deference.[24]
To ensure the purpose of the Law is properly implemented, the legislature should amend the Law to define “compelling public interest” and direct courts to a harder look standard of review, similar to the heightened standard applied to decisions under NEPA.[25] If not, New Jersey courts should ensure the decisions are made in the best interests of the communities affected aligned with the Law’s overarching purpose.[26] In the battle of environmental justice and agency deference, it’s time environmental justice wins.
[1]Environmental Justice, EPA, https://www.epa.gov/environmentaljustice (last updated Sep. 6, 2023); Learn About Environmental Justice, EPA, https://www.epa.gov/environmentaljustice/learn-about-environmental-justice (last updated Aug. 16, 2023).
[2]Meaningful involvement means “people have an opportunity to participate in decisions about activities that may affect their environment and/or health.” Learn About Environmental Justice, supra note 1.
[3]Seegenerally Nerissa-Anne D. Robinson, Deferring Environmental Justice in Mississippi: Agency Deference Legacy Impacts Southern Black Communities, 6 S. Region Black L. Students Ass’n L.J. 100 (2012) (arguing the standard of reasonableness for agency decisions is inadequate for social justice issues); See Dunbar Homes, Inc. v. Zoning Bd. of Adjustment of Tp. of Franklin, 233 N.J. 546, 558 (2018) (“A zoning board’s land use decisions . . . enjoy a presumption of validity. They must be allowed wide latitude in the exercise of delegated discretion.” (internal quotation marks omitted)).
[7] N.J. Stat. Ann. § 13:1D-161; see 54 N.J. Reg. 971(a) (June 6, 2022) (proposed rules). The rule has since been finalized, N.J. Admin. Code § 7:1C, but the language of the compelling public interest exception remains unaltered post public comment. Id. § 7:1C-5.3.
[8]Seegenerally Thomas Prol, Fulfilling the Promise of the Civil Rights Movement with Environmental Justice, 336 N.J. Law. 14 (2022) (labeling New Jersey “as a [n]ational leader in environmental justice.”); Julius M. Redd, Hilary Jacobs, & Stacy Sublett Halliday, New Jersey Passes Landmark Environmental Justice Legislation, Nat. L. Rev. (Sept. 1, 2020), https://www.natlawreview.com/article/new-jersey-passes-landmark-environmental-justice-legislation (recognizing New Jersey’s “first-of-its-kind environmental justice legislation”).
[9] Most environmental justice efforts in the United States have followed the pattern of early environmental protection laws, whereas the government acknowledges the issue and instructs agencies to consider it in decision making. These laws establish a mechanism with the hope that the best decision will be made, but the standards are set to a minimum. Seegenerally John A. Mueller & Taylor Lilley, Forty Years of Environmental Justice: Where is the Justice?, 25 Rich. Pub. Int. L. Rev. 75 (2022) (arguing after years of government recognition of environmental justice, it is time for change).
[10] The law lists eight specific industries that must comply with the legislation: major sources of air pollution; resource recovery facilities or incinerators; sludge processing facilities, combustors, or incinerators; sewage treatment plants with a capacity of more than 50 million gallons per day; transfer stations or other solid waste facilities, or recycling facilities intending to receive at least 100 tons of recyclable material per day; scrap metal facilities; landfills, including, but not limited to, a landfill that accepts ash, construction or demolition debris, or solid waste; and medical waste incinerators. N.J. Stat. Ann. § 13:1D-158.
[11] According to the Department, for a public interest to be compelling, “the primary p
urpose of the facility must be to serve an essential environmental, health or safety need of the host overburdened community for which there is no reasonable alternative to sitting within the overburdened community.” 54 N.J. Reg. 971(a) (June 6, 2022).
[12]See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)
[13]See Waste Mgmt. of NJ, Inc. v. Union Cnty Utils. Auth., 399 N.J. Super. 508, 526 (N.J. Super. App. Div. 2008); Kramer, 45 N.J. at 296–97 (N.J. 1965) (“Even when doubt is entertained as to the wisdom of the action, or as to some part of it, there can be no judicial declaration of invalidity in the absence of clear abuse of discretion by the public agencies involved.”); In re Graeta Recycling Co., No. A-2470-04T2, 2007 WL 609161 (N.J. Super. App. Div. 2006) (holding that the Department did not act unreasonably because environmental justice was properly considered).
[14]See, e.g., N.Y. Env’t Conserv. Law, §§ 8-105, 8-0113, 70-0107 (requiring New York’s Department of Environmental Conservation to consider potential disproportionate impacts); Environmental Justice Act, R.I. S2087 (2022) (requiring consideration of dipropionate impacts on overburdened communities for permit applications); see also State and Federal Environmental Justice Efforts, Nat’l Conf. of State Legis. (last updated May 26, 2023), https://www.ncsl.org/research/environment-and-natural-resources/state-and-federal-efforts-to-advance-environmental-justice.aspx.
[15] National Environmental Policy Act, 42 U.S.C. § 4321 (1969).
Rodanthe, North Carolina, already lost its fourth house to the ocean this year.[1] It begs the question of what to do when the sea literally washes your house away? Even if your house is still on land, nobody wants to waste their money on a risky investment house that will float away in a few years’ time. Plus, regardless of whether homeowners have insurance, they are still on the hook for cleanup efforts which are often costly and stretch for miles.[2] As such, North Carolina, like much of the world, is on the verge of a coastal crisis.
I am not alone in saying this; the United Nations’ Intergovernmental Panel on Climate Change, the National Oceanographic and Atmospheric Association, and North Carolina’s Coastal Resource Commission agree that low-lying coastal areas are in danger of being swallowed by the ocean’s waves.[3] They disagree on how quickly or how high the level of the sea will rise, but broadly speaking, it is inevitable and will harm North Carolina in particular.[4]
So where does that leave North Carolina?
Well, I am glad you asked. It requires looking at the wild year of 2012: Warlord Joseph Kony was in every headline, Kim Jong-Un had recently become the leader of North Korea’s military, and Barack Obama won reelection. But in North Carolina, shielded from the limelight, the State legislature passed House Bill 819 which amended North Carolina’s Coastal Area Management Act of 1974. The amendment clearly states the legislature’s intent not to mandate a sea-level rise policy or definition and outright bars any action on that front for the next five years.[5] Lastly, it abandons North Carolina’s local governments to figure out how best to proceed: whether to discuss, plan, or enact policy around sea- level rise and climate change or hope for the best and ignore the problem.[6]
As ridiculous as it is to abandon local governments to establish solutions for a global issue without a fraction of the resources or available help that the state itself could bring to bear, the responses were predictably inconsistent.[7] Regardless of that inconsistency, within eleven years, even Dare County, one of the wealthiest coastal communities, which previously spent $100 million on beach restoration, cannot afford its continued existence.[8] That does not even account for the fact that poor counties, like Tyrrell County, feel the impacts faster and are already struggling to account for floodwaters, raise houses above the waterline, or move people to higher ground.[9]
How to move forward?
At the very least, North Carolina needs to start the conversation and look frankly at the realities in front of them. But in an actionable sense, North Carolina’s Legislature must change its stance on climate change and climate readiness. Further, they need to make available funds at the state level, in conjunction with local communities, or by working with federal programs, like the Federal Emergency Management Agency’s Pre-Disaster Mitigation Grant Program. If no more natural solutions are available, or those that would temporarily stall the damage—like putting houses on raised stilts, which is already a common practice on North Carolina’s coast—it might be worth considering relocation.
Relocation, however, comes with its own pitfalls. For one, there is nowhere else to go when the entire community covers every square inch of a sand bar just above the ocean line. Furthermore, it unfairly punishes impoverished communities if the expectation is that they abandon their property. That is not to say that abandonment is the only option; eminent domain exists, as do voluntary buyout programs. However, that comes at a substantial cost that North Carolina likely could not bear alone. Nevertheless, all socioeconomic statuses will feel the pain, and thousands of homes and businesses will be underwater assets dragged out and drowned at sea.[10]
[1] Peter O’Dowd, In Rodanthe, North Carolina, More Homes Are at Risk After Another Home Collapses into the Ocean, npr, at 00:25 (Mar. 31, 2023), https://www.wbur.org/hereandnow/2023/03/31/homes-collapse-ocean-sea-levels.
[2]See Mike Andrews, Debris Stretch 21 Miles After House Collapse in Outer Banks, Officials say, WNCT9 (Mar. 15, 2023), https://www.wnct.com/weather/debris-stretches-21-miles-after-house-collapse-in-outer-banks-officials-say/ (explaining debris stretched for 21 miles); Richard Fausset, Beach Houses on the Outer Banks are Being Swallowed by the Sea, N. Y. Times (May 14, 2022), https://www.nytimes.com/2022/05/14/us/outer-banks-beach-houses-collapse.html (explaining that cleanup cost one homeowner $57,000).
[3]See Intergovernmental Panel on Climate Change, Climate Change 2022: Impacts, Adaptation and Vulnerability 1963 (Working Grp. II ed.) (2022) (explaining that a one-meter rise in sea level will happen within the next 75 years and resulting in 42% of the Albemarle-Pamlico peninsula underwater); William V. Sweet et al., Global and Regional Sea Level Rise Scenarios for the United States vii (2017) (explaining that NOAA expects sea level rise higher in North Carolina and on the east coast relative to the IPCC’s stated numbers); N.C. Coastal Res. Comm’n Sci. Panel, North Carolina Sea Level Rise Assessment Report 9–10 (2016) (demonstrating the expected impacts of sea level rise at a granular level across North Carolina’s coastline).
[4]See N.C. Coastal Res. Comm’n Sci. Panel supra at 22 (explaining North Carolina will be impacted and that there will be an increased number of flooding events as sea level rises).
[5] Coastal A rea Management Act of 1974, N.C. Gen. Stat. §113A-107.1 (2022); 2012 N.C. Sess. Laws 202.
[7]See Caitlin Thompson, North Carolina’s Notorious Climate Change Law—The Rich Are OK, the Poor Aren’t, .coda (June 29, 2021), https://www.codastory.com/waronscience/climate-change-north-carolina/ (“In the low-lying neighborhood of Goat Neck in Tyrrell County, about 45 minutes from Nags Head, the response to sea level rise has been very different.”).
[8] Keenan Willard, Outer Banks Set for Massive Beach Nourishment Project, WRAL News (Jun. 18, 2021), https://www.wral.com/nearly-100-million-set-to-go-toward-most-expensive-outer-banks-repair-effort-in-dare-county-history/19732917/; see also Peter O’Dowd supra note 1, at 03:08 (“Rodanthe needs [beach renourishment]. Our issue is we don’t have enough money to do another project in Rodanthe.”).
[9]See Caitlin Thompson, supra note 7 (“Many homeowners in Goat Neck don’t have the resources to elevate their houses.”); see also Willard, supra note 8 . (“Tyrell County doesn’t have the money to take on big infrastructure projects that would make neighborhoods like Goat Neck more resilient to climate change.”).
[10]Quick Facts, Beaufort County, North Carolina, Carteret County, North Carolina, Dare County, North Carolina, Hyde County, North Carolina, Tyrrell, County, North Carolina, Washington County, North Carolina, U.S. Census, https://www.census.gov/quickfacts/fact/table/darecountynorthcarolina,carteretcountynorthcarolina,tyrrellcountynorthcarolina,hydecountynorthcarolina,beaufortcountynorthcarolina,washingtoncountynorthcarolina/INC110221 (last visited, Nov. 6, 2023) (excluding Currituck, Pender, or other vulnerable counties, potentially ~121,000 housing units across six counties are vulnerable to sea level rise).
The United Nations estimates that by the year 2050 climate change will have displaced around 200 million people globally.[1] Since 2010, about 23 million people per year have been displaced, mostly within their own countries.[2] Displacement is caused by sudden-onset disasters like flooding, windstorms, and earthquakes as well as slow-onset disasters like desertification and rising sea levels.[3] Climate change also deeply impacts already vulnerable communities by exacerbating existing social, political, and economic tensions.[4]
The plight of climate refugees is valid and imminent. However, no nation currently offers legal protections to refugees solely on the basis of climate change.[5] According to the 1951 U.N. Convention Relating to the Status of Refugees, a refugee is “a person who has crossed an international border owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.”[6] This definition assumes that a person is being persecuted by another human being on the basis of one of the listed protected categories.[7] However, what if the persecutor is climate change? The link between the harm suffered and the intent of the actor becomes complicated when that actor is not human. The immigration framework provided by the 1951 Convention does not account for the unique challenge faced by climate refugees. As a result, it is especially difficult for climate refugees to qualify for protection in many receiving countries.
There is reason for hope. The White House, in a report released in October 2021, states that it seeks to “identify ways to apply existing protection frameworks in the context of climate-change related displacement and to identify gaps where the United States should forge new legal pathways to protection.”[8] This acknowledgement of the need for specific protection of climate refugees by the U.S. is encouraging. However, until there are formal protections in place it will take creative approaches by advocates and practitioners to support and protect those displaced by climate change.
One approach is focusing on the ways in which climate change interacts with other socio-economic or political factors that drive displacement. Climate is often considered a “threat-multiplier” in that it exacerbates existing adverse conditions.[9] For example, disasters such as drought cause the depletion of natural resources in rural areas, which causes people to migrate to urban areas in search of jobs and services.[10] Resulting tensions due to limited job opportunities and high population density can lead to increased conflict.[11] This can be particularly risky for groups who are already vulnerable and marginalized within a community or state. An argument for protection may be made if a person can prove that they were impacted by human-caused persecution that has been exacerbated by climate disasters.
A second approach focuses on how climate change can affect the right to life. The United Nations Human Rights Committee considered this possibility in the case of Teitiota vs. New Zealand.[12] The Committee, in its opinion, emphasized that environmental degradation is one of the most serious threats to the future generation’s right to life.[13] Accordingly, the Committee found that in cases where a person displaced by climate change faces a “serious” risk of harm they may be protected under the Refugee Convention, even if the harm arises from environmental factors instead of human-caused injury.[14] This holding is groundbreaking because it formally recognizes, for one of the first times on an international stage, that environmental degradation can violate a person’s right to life and can trigger obligations for protection of displaced persons as a result.
Ideally, in the near future, there will be legal protections specifically for persons displaced by climate change. However, until these protections are in place it will require the persistence and creativity of practitioners and advocates to find ways to use existing pathways to protect the rights and wellbeing of climate refugees.
[3]A State-Led Initiative Working Towards Better Protection for People Displaced Across Borders in the Context of Disasters and Climate Change, Platform on Disaster Displacement 12, https://disasterdisplacement.org/wp-content/uploads/2019/10/20102019_FINAL_EN_LEAFLET_SCREEN_compressed.pdf (last visited Nov. 6, 2023).
[4]The Facts: How Climate Change Affects People Living in Poverty, Mercy Corps (Apr. 08, 2021), https://www.mercycorps.org/blog/climate-change-poverty#:~:text=Floods%20and%20droughts%20brought%20on,change%20in%20the%2021st%20century.
[6].What We Do: Climate Change and Disaster Displacement, UNHCR, https://www.unhcr.org/what-we-do/build-better-futures/environment-disasters-and-climate-change/climate-change-and (last visited Nov. 6, 2023).
[7] Roger Zetter, The Role of Legal and Normative Frameworks for the Protection of Environmentally Displaced People, in Migration, Environment and Climate Change: Assessing the Evidence 385, 397 (Frank Lazcko & Christine Aghazarm eds., 2009).
[8]Report on the Impact of Climate Change on Migration, White House 17 (Oct. 2021), https://www.whitehouse.gov/wp-content/uploads/2021/10/Report-on-the-Impact-of-Climate-Change-on-Migration.pdf.
[9] Sara Vigil et al., Exploring the Environment-Conflict-Migration Nexus in Asia 2 (Marion Davis ed. 2022).
[12]See Mari Galloway, Teitiota v New Zealand, Climate Migration and Non-Refoulement: A Case Study of Canada’s Obligations Under the Charter and the ICCPR, 45 Dalhousie L.J. 385, 388 (2022).
Prior to the pandemic, there were approximately 2.8 million deaths per year in the United States.[1] Each one of those deaths left a body, and those bodies did not magically evaporate. The law of final disposition—primarily burial and cremation—dictated how survivors managed those remains. Americans have become culturally distanced from the process of preparation and disposition, and they regularly employ professionals to manage this undertaking.[2] However, to call the business of funeral homes and crematoria deathcare is synecdoche. There was a time before deathcare was an industry.[3] There is far more to the process of disposition, from last breath to final rest, than the embalmer’s business.
Despite the universality of death, the final disposition of human remains is regulated piecemeal,[4] prioritizing the interests of embalmers over the families of the deceased.[5] This hinders families’ abilities to provide respectful, meaningful disposition of the deceased, a crucial aspect of socially contextualizing death in their lives.[6] The FTC promulgated the Funeral Rule in 1982 in an effort to protect funeral consumers, but it is simply not enough.[7] Just as advancing technology and increasing population dramatically changed the nature and scale of food manufacture, precipitating the development of the FDA,[8] the modern structure of deathcare demands a more unified and comprehensive approach to regulation.
To unify the regulation of deathcare for the purposes of protecting the rights of survivors, ensuring quality and accessibility of care, and balancing the interests of the many parties that participate in the process of final disposition, Congress should establish a federal agency dedicated to the regulation of the disposition of human remains. Part I provides an overview of the modern structure and relevant history of American deathcare. Part II begins the analysis by explaining the common law right of sepulcher. The argument transitions into consideration and critique of the FTC Funeral Rule,[9] identifying weaknesses in the current federal regulatory scheme in Part III and describing how state law is currently insufficient to fill the gaps in Part IV. This discussion culminates in Part V, examining how embalming is understood by the public and presented by embalmers—specifically critiquing how the professional characterization of embalming is a misrepresentation of what is merely a useful technique for preservation and aesthetics, based in outdated notions of ptomainic miasmas.[10] Finally, this Note delves into the scope and structure of the proposed federal agency. Part VI outlines the agency’s basic functions: addressing the purpose of the Funeral Rule and expanding its reach to crematoria and cemeteries, including functioning enforcement mechanisms in this amended Funeral Rule, and outlining state licensing and inspection requirements.
—
[1] Kenneth D. Kochanek et al., Deaths: Final Data for 2017, 68 Nat’l Vital Stat. Rep. no. 9, at 1 (2019); Sherry L. Murphy et al., Deaths: Final Data for 2018, 69 Nat’l Vital Stat. Rep. no. 13, at 1 (2021); Jiaquan Xu et al., Deaths: Final Data for 2019, 70 Nat’l Vital Stat. Rep. no. 8, at 1 (2021).
[2] Maggie Jones, The Movement to Bring Death Closer, N.Y. Times Mag. (Dec. 21, 2020), https://www.nytimes.com/2019/12/19/magazine/home-funeral.html (“In the United States, we have come to see death as an emergency. We call the doctors, the nurses, the police, the emergency workers, the funeral staff to take over for us . . . . If death practices reveal a culture’s values, we choose convenience, outsourcing, an aversion to knowing and seeing too much.”).
[3] Jessica Mitford, The American Way of Death Revisited 14–17 (1998); see also Robert G. Mayer, Embalming: History, Theory, and Practice 5–6 (5th ed. 2012).
[4]See generally Joshua Slocum & Lisa Carlson, Final Rights: Reclaiming the American Way of Death 159–498 (2011).
[5]See Tanya Marsh, Regulated to Death: Occupational Licensing and the Demise of the U.S. Funeral Services Industry, 8 Wake Forest J.L. & Pol’y 5, 7 (2018); see generally Tanya Marsh, Rethinking the Law of the Dead, 48 Wake Forest L. Rev. 1327 (2013).
[6]See generally Ernest Becker, The Denial of Death 9–47 (1973); Stu Farber, Thomas Egnew & Annalu Farber, What is a Respectful Death?, in Living with Dying 102, 103–04 (Joan Berzoff & Phyllis R. Silverman eds., 2004).
[7] Joshua L. Slocum, The Funeral Rule: Where It Came from, Why It Matters, and How to Bring It into the 21st Century, 8 Wake Forest J.L. & Pol’y 89, 99–102 (2018); Keith E. Horton, Who’s Watching the Cryptkeeper: The Need for Regulation and Oversight in the Crematory Industry, 11 Elder L.J. 425, 433–38 (2003).
[8] Stephen Daily, A Brief History of the FDA, Cataract & Refractive Surgery Today (Oct. 2011), https://crstoday.com/articles/2011-oct/a-brief-history-of-the-fda/.
[9] FTC Funeral Rule, 16 C.F.R § 453 (2021); see also Bureau of Consumer Prot., Funeral Industry Practices: Report to the Federal Trade Commission and Proposed Trade Regulation Rule (1978) (investigating the industry and identifying the need for consumer protection regulations).
[10] Lydia Kang & Nate Pederson, Quackery: A Brief History of the Worst Ways to Cure Everything 165–67 (2017).
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.
—
[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.
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.
–
[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.
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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.
