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"Be Problem Solvers," Speakers Urge VLS Graduates

Vermont Law School — 22 May 2012 16:00:00 EST

Vermont Law School's newest alumni should dedicate themselves to being problem solvers who serve the public good in a rapidly changing world, two prominent speakers told members of the class of 2012 during VLS's 37th commencement weekend.

"Challenge laws and conventions that are outmoded, seek out the blank spots, be creative in your problem solving efforts," Vermont Supreme Court Chief Justice Paul Reiber said during his keynote speech at commencement on Saturday.

More than 600 students received Juris Doctor or master's degrees during the ceremony on the South Royalton town green.

Mark Tercek, the president and chief executive officer of The Nature Conservancy, offered similar advice during his talk the day before commencement about new strategies in conservation and ways that VLS graduates can play a role in protecting the environment and the human race. Tercek reviewed the state of conservation broadly, saying many parts of the global ecosystem were declining despite decades of effort to reduce pollution, wildlife and habitat destruction and climate change. "The environmental movement needs new people, new ideas and new energy," he said. "We need to think differently, bold and big."

Conservation efforts have been hurt by a public perception that protecting nature is elitist rather than critical to humans' well being and economic growth, Tercek said. "Nature is valuable, not just wonderful."

He discussed the Conservancy's new approaches, including preserving the headwaters and watershed of rivers that supply drinking water in Latin America rather than building expensive water filtration plants downstream. Other projects include persuading Iowans to allow their floodplains to absorb floodwaters rather than relying on levees that actually worsen flooding; the Conservancy's partnerships with Dow Chemical, Coca-Cola and other companies to promote cooperation between scientists, engineers and other key players; and a Conservancy internship program that recruits young, urban, lower-income minorities into conservation careers.

At commencement, Reiber got a chuckle from the crowd when he started by saying: "Next to swearing in new lawyers, this is my new favorite thing to do." But he also spoke about the tough job market that awaits new lawyers, saying failure and adversity were valuable to any successful career and that the key was to persevere. He said the justice system needs more lawyers to represent people who can't afford representation, especially in family court. He urged the graduates to use "practical wisdom and good judgment" whether they practice law or work in other fields.

Jeff Shields, who will retire July 31 after eight years as VLS's dean and president, was recognized for his leadership and community building. During his tenure, VLS launched the U.S.-China Partnership for Environmental Law, the Institute for Energy and the Environment, the Distance Learning program and other initiatives; strengthened the faculty by hiring nationally prominent teachers and lawyers; renovated Debevoise Hall, created the Center for Legal Services and completed other building and infrastructure projects; expanded the Career Services and Institutional Advancement offices, dual degrees program, clinical and experiental program and other programs; raised an average of $4 million a year; and undertook other initiatives that strengthened the school.

Alice Ranson '12 received the Learned Hand Award for academic excellence, Erin Wyatt '12 received the Alumni Association Award for contribution to the school and Jess Wilkerson '12 received the Maximilian W. Kempner Award for exhibiting civility, integrity and other attributes of VLS's fifth dean.

Honorary degrees were awarded to Reiber, Tercek and Edwin Colodny, a former VLS trustee, former president and CEO of US Airways, former interim president of the University of Vermont and former interim CEO of Fletcher Allen Health Care.

New Clinical Building to Improve Free Legal Services for Public

Vermont Law School — 21 May 2012 16:00:00 EST

Vermont Law School cut the ribbon Friday on its new Center for Legal Services, an historic landmark that underwent a $3.5 million renovation to create a vibrant new home for VLS's largest pro bono clinics.

The 14,700-square-foot facility will enable the South Royalton Legal Clinic (SRLC) and the Environmental and Natural Resources Law Clinic (ENRLC) to serve clients more effectively and provide an optimal learning environment for students. The larger space will also allow the clinics to add staff attorneys, student clinicians and cases in coming years. The clinics provide millions of dollars in free legal services each year in the name of environmental stewardship, social justice and public interest.

"This building represents the can-do spirit of Vermont Law School," retiring Dean and President Jeff Shields told the large crowd at the ribbon cutting ceremony, which included Gov. Peter Shumlin, Vermont Supreme Court Chief Justice Paul Reiber and representatives of U.S. Sen. Bernie Sanders, U.S. Sen. Patrick Leahy and U.S. Rep. Peter Welch.

The project was prompted by the American Bar Association's requirement that VLS improve the SRLC's physical space, but it expanded into a strategic initiative to bring the SRLC and the ENRLC under one roof. Barrister's Book Shop will join the clinics this summer in the newly renovated building at 190 Chelsea St., which was formerly Freck's Department Store.

"The ABA said we needed to downsize our clinical programs because the current buildings were insufficient, so we took this decrepit but historic building and turned it into a first-rate clinical facility," said Shields, whos thanked the nearly 500 donors who contributed to the project, including VLS Trustee Fran Yates and Joel Faxon '04, a partner at Stratton Faxon.

Shumlin thanked VLS for representing low-income residents and community groups who can't afford legal representation, saying the clinics' services were crucial to the "fabric of family" and to having a clean environment. The governor also thanked Shields and his wife Genie for their efforts during his eight years as dean and president of VLS. "You are responsible for this accomplishment," he said. "This building is affirmation that this school cherishes the place it's in and gives back everyday selflessly, which is the job of lawyers."

Reiber said the Center for Legal Services represents VLS's commitment to the legal profession's code of ethics and professionalism, "which are one of the most difficult things to teach. I applaud Vermont Law School and Dean Shields."

Faxon echoed the comments of the other speakers, saying the center will "provide the public with the right to access to the courts and the right to be heard."

VLS's clinical programs are overseen by two of the country's top clinical educators. Professor Margaret Barry, past president of the Clinical Legal Education Association, is the acting associate dean for Clinical and Experiential Programs, and Christine Cimini, former head of clinical programs at Denver University Sturm School of Law, is the director of Semester in Practice and Externship Programs.

VLS's clinical program--ranked 23rd among law schools nationwide by U.S.News & World Report--stands out from others in several ways. Few law schools have an environmental law clinic, and even fewer have a land use clinic. The VLS poverty law clinic allows students in-depth work in immigration, child welfare, domestic relations, public benefits and prison projects. The environmental clinic, one of the largest in the country in terms of students enrolled, offers rare and ready access to top environmental experts on the faculty.

China Fellow Moser Discusses True Costs of Conservation

Vermont Law School — 08 May 2012 16:00:00 EST

A recent editorial by media personality John Stossel about the costs of environmental protection prompted a response in the Huffington Post from Adam Moser, a China Environment Fellow and Energy Law Fellow at Vermont Law School's U.S.-China Partnership for Environmental Law.

Moser rebutted Stossel's claims in a commentary on the Huffington Post's Green blog.

"I'm sure almost every country has someone like John Stossel -- a self-righteous media personality who depicts the world in black and white, and whose appeal, to a section of the population, lies precisely in his oversimplified take on what are very complex matters," Moser wrote.

"If Stossel thinks that environmentalists are making U.S. energy prices rise, his understanding of markets and world events is skewed beyond belief. I invite him to come to China, so that he might understand why global energy prices are rising. China will struggle with leaving a dirty economic model behind because it is always easier to preference short-term economic growth over investments in value creating conservation for the future. But at least China realizes there are real physical constraints to its landfills and to its fossil fueled growth. If it doesn't realize this, then American environmentalists should be the least of Stossel's concerns."

Moser, whose specialties are environmental energy law and policy in the United States and China, has a JD degree from the University of Cincinnati College of Law and a master of laws degree in environmental law and energy law from Vermont Law School.

Sen. Leahy Wins $3.9 M for VLS, ISC to Continue Environmental Work in China

Vermont Law School — 27 Apr 2012 16:00:00 EST

Sen. Patrick Leahy (D-Vt.) has rescued $3.9 million to continue the work of Vermont Law School's U.S.-China Partnership for Environmental Law and another pioneering Vermont organization that are helping to nurture the emergence of environmental advocacy in China.

Leahy, who chairs the Senate's committee on the budget for the State Department, foreign aid and other U.S. foreign operations, has secured about $15 million each year for several years to fund a competitive grant program for rule-of-law training in China, where the judiciary is often manipulated by corrupt officials and rapid economic growth has led to unprecedented environmental and public health problems. Under the Leahy-funded initiative, U.S. organizations devise and implement programs to partner with civic reform groups in China in fostering environmental advocacy and enforcement, in challenging official corruption and in protecting worker health and safety.

Vermont Law School and the Vermont-based Institute for Sustainable Communities have been among the program's participants, forming the U.S.-China Partnership For Environmental Law, based at the VLS campus in South Royalton. Since 2006 their program has trained thousands of Chinese lawyers, citizen advocates and educators, giving them the skills and academic infrastructure needed to solve mounting environmental and energy challenges through the rule of law. The program helps empower ordinary citizens in China by building legal training capacity for lawyers and civic organizations there in challenging government corruption, local pollution and threats to worker health and safety. Leahy notes that another benefit is that emergence of environmental and safety standards within China helps in leveling the economic playing field with American firms that operate within U.S. environmental and safety standards.

Read the full news release from Leahy's office.

After Irene: VPR Reports on VJEL Symposium

Vermont Law School — 25 Apr 2012 16:00:00 EST

Tropical Storm Irene may be past, but its impact on Vermont continues to reverberate as government officials, property owners, conversationists, anglers and others look for better ways to manage rivers and floodwaters in the Green Mountain state.

Vermont Public Radio reported on a recent symposium, titled "After Irene: Law and Policy Lessons for the Future," that was hosted by the Vermont Journal of Environmental Law, a student-run online journal at Vermont Law School.

"Vermont rivers program manager Michael Kline says Irene represents a turning point in how the state and communities approach rivers," VPR reported. "Even so, Kline says 40 percent of the river repairs done after Irene actually increased the danger from flooding. Kline says only recently have officials begun questioning the decades long practice of dredging, widening and straightening rivers after floods. Following Irene, Kline says the state river engineers are working with towns to take a new approach to managing rivers to better prepare for future floods.

"'We are beginning to look at our flood response differently so that instead of creating the fire hose effect out of our rivers, we can find out where they can dissipate some of that flood flow, where they can expend some of that flood energy,' he says.

"The key to that is protecting floodplains and the idea of giving rivers the room they need to overflow. Kline says Vermont's rivers can no longer access 75 percent of the floodplain that borders them. That's largely because of development and the way rivers have been altered. Better local planning can protect existing floodplains and mitigation programs could help clear out developed areas."

Sports Industry Leaders to Advise Sports Law Institute

Vermont Law School — 04 Apr 2012 16:00:00 EST

Vermont Law School's Sports Law Institute recently announced its Board of Advisors, which includes some of America's top sports industry leaders, and the start of a Blue Chips program designed to give students the core skills, hands-on experience and research opportunities needed to succeed in the sports world.

Among the luminaries on the SLI's board are Alan Milstein, one of the leading sports agents and litigators in the country; Jay Reisinger, attorney for Alex Rodriguez and other star baseball players; and B.J. Schecter, executive editor of Sports Illustrated and SI.com.

"We're honored that such an illustrious and dynamic group of people have stepped forward help to guide the Sports Law Institute and to provide opportunities for Vermont Law School's students," said Professor Michael McCann, director of the SLI and a nationally recognized expert in the fields of sports law, antitrust, and law and economics. He also is a legal analyst for Sports Illustrated and NBA TV and the sports law columnist for SI.com (CNNSI).

Blue Chips, which will start in fall 2012, is an innovative program that will provide students with real-world, practical skills in sports law. Those skills include the drafting of employment and endorsement contracts, foundational knowledge in sports litigation and arbitration, and application of NCAA regulations. It will also include assistance on helping students obtain internships and jobs in sports law.

The SLI also recently held a successful Ski, Snowboarding and Resort Law panel discussion. "The panel was highly informative, wide-ranging and a great introduction for our students to the kinds of legal issues that arise in the skiing and snowboarding industries," said Associate Professor Brian Porto, deputy director of the SLI whose most recent book is titled "The Supreme Court and the NCAA: The Case for Less Commercialism and More Due Process in College Sports."

The SLI's Advisory Board members are:

Jeff Benedict, award-winning investigative journalist, attorney and best-selling author.
Chris Brown, president of the Basketball and Entertainment Divisions of Orpehus Sports and Entertainment, whose clients include NBA players and music stars.
Christopher Callanan, founding partner of Stevenson McKenna & Callanan and a seasoned sports litigator and agent who has represented professional and Olympic athletes and sports agents.
Ralph Cindrich, sports agent and former NFL player who negotiated one of the landmark contracts in sports history that altered the salary hierarchy in the NFL.
Neil Cornrich, NFLPA-certified agent/attorney and president of NC Sports who represents a number of prominent NFL coaches and players.
Timothy Epstein, partner in Smith Amundsen where he is chair of the firm's Sports Law Group.
Daniel Fitzgerald, sports attorney at Brody Wilkinson who provides counsel to clients on legal issues in amateur, collegiate and professional athletics.
Robyn Glaser, senior adviser to the Kraft Sports Group.
Joshua Golka, sports attorney who provides counsel to athlete agents, athletes and others with a focus on the laws and regulations governing athlete agents.
Betsy Goff, sports attorney who previously was an executive at ABC and vice president of ESPN and IMG Legal.
Jimmy Golen, Associated Press sports writer and Yale Law School graduate who has extensive experience covering legal matters in sports.
Ken Gordon, senior director and assistant general counsel of ESPN.
John Harper, vice president consulting at Wasserman Media Group who previously managed business development and brand initiatives with Sony and Nike.
Jaimesen Heins, associate general counsel at Burton Snowboards.
Darren Heitner, attorney who focuses his legal practice on sports, entertainment and music litigation and transactional work.
Mark Hicks '06, associate director of High School Review at the NCAA Eligibility Center.
Terence High, NFLPA-certified agent and attorney who represents NFL and college coaches.
Donald Jackson, sports agent and attorney at The Sports Group whose clients include players and coaches.
Nate Jones, digital media and professional athlete marketing attorney at Goodwin Sports Management.
Rob Kaler 90', chief operating officer and general counsel of the U.S. Soccer Foundation and who previously litigated on behalf of the National Football League Players Association.
Jon King, partner in Hausfeld LLP and one of the lead attorneys for the plaintiffs in In re NCAA Student-Athlete Name & Licensing Litigation, a nationwide class action also known as the Ed O'Bannon and Sam Keller litigation.
Matthew Lane, sports attorney whose clients include Olympic athletes and professional runners.
Jason Levien, co-owner of the Philadelphia 76ers and an attorney and sports agent who represents professional athletes across the globe.
Lisa Masteralexis, department head and associate professor in the Mark H. McCormack Department of Sport Management at the University of Massachusetts, Amherst, and a certified player agent with the Major League Baseball Players Association.
Edward Mattes '83, chairman of the Vermont Law School Board of Trustees, co-owner of the Ogden Raptors and Connecticut Tigers minor league affiliates and co-founder and CEO of Avant Garde Therapeutics and Technologies LLC.
Alan Milstein, co-managing shareholder of Sherman, Silverstein, Kohl, Rose & Podolsky, P.A., agent for star athletes and one of the leading sports litigators in the country.
James McCurdy, president of the Pioneer Baseball League, former minor league team owner and distinguished sports law professor and author.
Jim Munsey '84, president of Munsey Sports Management, a MLBPA certified agent whose clients include top Major League Baseball players.
James Murphy, MLBPA certified agent at TWC Sports who represents some of the top Major League Baseball players.
Eric Nyquist, vice president of Strategic Development of NASCAR and formerly executive vice president of the Chicago White Sox Enterprises and manager of Business Planning for the NFL.
Buster Olney, senior baseball writer for ESPN The Magazine and analyst for ESPN's Baseball Tonight.
Katherine Potter, sports attorney at Burns Levensonwho represents teams/stadiums in mergers/acquisitions and in tax matters.
Jay Reisinger, attorney for Alex Rodriguez, Andy Pettitte, Sammy Sosa, Francisco Rodriguez and other big league players and a founding partner of Farreel & Reisigner, where he manages the sports law practice.
Ryan Rodenberg, assistant professor at Florida State University and formerly associate general counsel at Octagon who also worked at the ATP World Tour and Nike.
Joe Rosen, president of Baseball and Media Divisions of Orpheus Sports and Entertainment, which he co-founded, and an MLBPA certified agent.
B.J. Schecter, executive editor of Sports Illustrated and SI.com and a faculty member of the Columbia University School of Journalism.
John Shinn, MLBPA certified player agent and attorney.
Dan Silverman, director of compliance in the Department of Athletics at Yale University.
Greg Skidmore, litigation partner at Kirkland and Ellis and the founder and editor of Sports Law Blog.
Brian Socolow, chair of the sports practice at the national law firm of Loeb & Loeb LLP.
Debbie Spander, director of the Sports Lawyers Association and president of Spander Digital Sports & Entertainment.
Bryan Stroh, vice president and general counsel of the Pittsburgh Pirates and previously a partner at Katten Muchin, where he represented the Chicago White Sox, Cleveland Indians and Oakland A's.
Sarah Eaton Stuart, associate general counsel of Reebok, where she is the senior lawyer responsible for global marketing and sports marketing.
Michael Wall, vice president, general counsel and corporate secretary of Bauer Performance Sports and previously general counsel of TD Garden and the Boston Bruins.
Andrew Weber '07, former general manager of the Connecticut Tigers and Oneonta Tigers.
Jon Wertheim, Sports Illustrated and SI.com columnist and graduate of the University of Pennsylvania Law School who has covered every sport as well as legal matters relating to sports.
Mike Zarren, assistant general manger and legal counsel of the Boston Celtics who is considered one of the leading experts on role of analytics in basketball.
Warren Zola, assistant dean for Graduate Programs in the Carroll School of Management at Boston College and the chair of Boston College's Professional Sports Counseling Panel.

Wynona Ward '98 Profiled in Documentary Film

Vermont Law School — 28 Mar 2012 16:00:00 EST

BYUtv aired a short documentary recently about Vermont Law School alumnus Wynona Ward '98 and the nonprofit legal group she founded, Have Justice--Will Travel, which advocates for battered, low-income women and children in Vermont.

Ward, 60, who grew up in poverty in rural Vermont where family violence was common, was working as a long-haul trucker when she decided to take her life in a different direction in 1996. She enrolled at VLS, was awarded a Schweitzer Fellowship and went on to found Have Justice--Will Travel after graduating in 1998.

Since then, the organization has provided free legal and social support to more than 10,000 women and children. Ward and her small staff visit victims of domestic violence in their homes, bridging the cultural, geographic and financial gaps that can separate victims and attorneys.

Watch the documentary, which includes VLS's South Royalton Legal Clinic and Staff Attorney and Assistant Professor Alex Banks.

MacDonough '98 Named U.S. Senate's First Female Parliamentarian

Vermont Law School — 15 Feb 2012 17:00:00 EST

Elizabeth MacDonough '98 recently became the first woman selected as chief parliamentarian in the U.S. Senate since the post was created in 1935.

Politico reported (here and here) on MacDonough, who as parliamentarian interprets arcane Senate rules and precedents.

"Elizabeth knows everybody. She knows the secretaries, she knows the Capitol policemen, she knows the janitors and she's always there for them," Alan Frumin, her old boss and the outgoing parliamentarian, told Politico. "I'd like to think I'm as down-to-earth as Elizabeth," he added without flinching, "but I'm not."

"She's a smart, diligent woman. She's got a good brain and she's got integrity," Sen. Richard Shelby (R-Ala.), told Politico. "You put all that together, and you have the makings of a great parliamentarian."

MacDonough grew up in the nation's capital and stayed inside the district to earn her BA degree at George Washington University. When she was ready for law school, Vermont Law School's comparative quiet was "extremely attractive," she said. She could not have predicted then how her Vermont years would help pave the way back to Washington, where she now dispenses legal advice around the clock to the nation's leaders.

In 1999, MacDonough accepted a position as an assistant parliamentarian for the Senate, and in 2002 she was promoted to senior assistant parliamentarian.

VLS Faculty Discuss: Why Law School, Why Vermont Law School

Vermont Law School — 14 Feb 2012 17:00:00 EST

At a time of widespread change in the legal job market, legal education and how the law is practiced, Vermont Law School's new video "Why Law School, Why Vermont Law School" features members of the VLS faculty discussing the life-long benefits of earning a JD.

"Law school is the very best preparation for a broad career," Dean Jeff Shields says.

"There are a ton of career paths you can pursue as a lawyer," says Professor Cheryl Hanna. "We often have in our minds that there are just these traditional lawyer jobs going to a big firm ... but that's just really a small piece of what lawyers do."

Since its founding in 1972, VLS has drawn individuals from across the country and world with a passion for public service, social justice, environmental stewardship and an interest in pursing legal education as a means to make a difference in the world.

VLS is recognized as an entrepreneurial community of energetic students and accomplished legal scholars and practitioners who regularly collaborate on advocacy work that reaches far beyond Vermont. The school's emphasis on practical, experiential learning across government, the nonprofit sector, and in private commerce provides VLS students, while they are students, with a realistic assessment of the challenges and rewards of varied career options in the legal profession.

U.S.-China Partnership Receives Grant to Promote Environmental, Public Health

Vermont Law School — 27 Jan 2012 17:00:00 EST

Vermont Law School's U.S.-China Partnership for Environmental Law, in collaboration with Sweden's Faculty of Law at Uppsala University, recently received a $40,000 grant to fund a joint conference with Sun Yat-sen University in Guangzhou, China, in September.

The grant from the Swedish Council for Working Life and Social Research will support a two-day workshop titled "Comparative Environmental and Public Health Law, Regulations, and Remedies."

The workshop will identify crucial research topics in the field of environmental and health protection law and foster academic discussion on the relationship between environmental law and the quality of public health, said Professor Jason Czarnezki, faculty director of the U.S.-China Partnership.

The workshop is designed to expand Swedish higher learning institutions' connections with Chinese universities by facilitating scholarly discourse among legal experts in environmental and public health fields from Sweden, the United States and China. The workshop also will enhance long-term cooperation in research, innovation and education with Chinese counterparts.

The workshop will bring together 20 to 30 international and Chinese professors whose primary research areas are environmental and public health policy. The workshop also will offer a space in which to exchange ideas and develop future collaborate research projects. Papers resulting from this collaboration may be published in the Vermont Journal of Environmental Law, Nordic Environmental Law Journal and the environmental law journal of Sun Yat-sen University.

National Media Discuss Vermont Yankee Court Ruling With VT Law School Experts

Vermont Law School — 27 Jan 2012 17:00:00 EST

The New York Times and other media nationwide sought out Vermont Law School faculty experts for insight into a federal court's recent ruling on the fate of the Vermont Yankee nuclear power plant.

U.S. District Judge J. Garvan Murtha ruled that Vermont's only nuclear plant can remain open beyond its originally scheduled shutdown date of March 21. Vermont Yankee''s owner, Entergy Corp., argued during a three-day trial in September that the state's efforts to close the plant were pre-empted by federal law. The federal Nuclear Regulatory Commission granted a 20-year extension on Vermont Yankee's license in March 2011.

See the coverage in: The New York Times, Washington Post, Vermont Public Radio, Burlington Free Press, WCAX.

Failure Isn’t An Option, MLK Day Speaker Tells VT Law School

Vermont Law School — 18 Jan 2012 17:00:00 EST

Some of America's founding fathers owned slaves, but their pursuit of equality, justice and a "more perfect union" remains relevant today, Vermont Law School's Martin Luther King, Jr., Day speaker said Tuesday.

In his keynote address, Colmon Elridge III, 30, the youngest gubernatorial executive assistant in the nation, said America's failure to create a perfect union shouldn't discourage people of all races from continuing to pursue that goal.

Shirley Jefferson, associate dean for Student Affairs and Diversity, and Dean Jeff Shields told the audience that King's courage and non-violent tactics have prompted many improvements in society, but that much work remains to be done.

Elridge became executive assistant to Kentucky Gov. Steve Beshear in 2007 when he was 26. He also is the first African-American executive vice president of Young Democrats of America. In 2007, he introduced then-presidential candidate Barack Obama when he visited Lexington.

During his MLK Day talk, Elridge discussed the inconsistencies between some of the founding father's words and their actions, but he said they set the nation on a never ending struggle for justice for all its residents.

The founding fathers had "aspirational strength humbled by human weakness," which King understood to be part of humankind's "self-inflicted imperfections," he said.

But America's inability to achieve perfection "isn't an excuse not to try," he said. "Our nation's collective dream of commonality is stronger than that which separates us."

Elridge said the United States was at a critical moment in its history. He urged Americans to reject political divisiveness "for a common purpose of betterment of all people, not for what's politically expedient."

National Media Report on VT Law School's Top 10 Environmental Watch List

Vermont Law School — 16 Dec 2011 17:00:00 EST

The New York Times was among the many media nationwide that reported on the Dec. 12 launch of Vermont Law School's second annual Top 10 Environmental Watch List.

The Watch List spotlights the nation's most critical environmental law and policy issues of 2011 and how they may play out in 2012.

"There are only a few weeks till 2012, which means you are probably trying to shovel your way through the flurries of 'year-in-review' summaries that tend to accumulate around this time," the High Country News said. "One that stands out is Vermont Law School's Top 10 Environmental Watch List, the venerated law school's yearly synthesis of the country's most pressing and topical environmental issues and developments."

Read the coverage: Los Angeles Times, National Law Journal, High Country News, New York Times, National Geographic Daily News, Huffington Post and Vermont Public Radio.

Is the Durban Platform a Suicide Pact?

Vermont Law School — 16 Dec 2011 17:00:00 EST

Vermont Law School Professor Pat Parenteau, whose expertise includes climate change, wrote the following commentary on the United Nations Framework Convention on Climate Change in Durban, South Africa, which concluded Dec. 11, 2011:

Measured against the goal of saving the Kyoto protocol and avoiding the complete collapse of the U.N. framework for addressing climate change, Durban was a qualified success. Measured against the goal of acting in time to avoid the catastrophic consequences of climate change, however, Durban was a bust.

Thanks to an 11th hour deal brokered by the European Union and India, the delegates from 194 nations adopted the Durban Platform, which breaches the controversial "firewall" between developed and developing nations and calls for negotiating a comprehensive emissions reduction "instrument" by 2015 that would enter into force by 2020. Not necessarily a mandate to achieve specific limits, but an instrument with "legal force."

Unfortunately, even with a binding agreement by 2020 it will be too late to hold average global temperatures below the 2° C target agreed to in the Copenhagen Accord. That's the target leading climate scientist James Hansen says is too high and will likely result in the loss of the Greenland ice sheet, leading to a 20-foot sea level rise over several centuries. According to the 2011 World Energy Outlook published by the International Energy Agency, the world has less than five years to avoid a "carbon lock-in" caused by a multi-trillion dollar investment in fossil fuel sources. That would boost global temperatures by at least 3.5 °C by 2100, with catastrophic effects in many parts of the world from flooding, drought, famine, heat waves and disease. In fact, the increase could well be closer to 4° C, given nasty feedbacks like the accelerated melting of Arctic permafrost that is well underway.

What would a 4° C world be like? Here's how Kevin Anderson, director of the prestigious Tyndall Energy Program describes it: "A 4 degrees C future is incompatible with an organized global community, is likely to be beyond 'adaptation', is devastating to the majority of ecosystems and has a high probability of not being stable." Translation: a planet you would not want to bequeath to your grandchildren.

Delaying action until 2020 also means that the costs of carbon reduction would be four times greater than they would be today, according to IEA. On a more positive note, Durban did produce a management framework, the Green Climate Fund, which will eventually gather and disburse some $100 billion per year by 2020 to help poor countries develop cleanly and adapt to climate impacts. The proposed fund can help draw private capital into international climate finance. Some progress was also made on addressing deforestation, which is responsible for 15 percent of the emissions -- more than the combined emissions of all of the motor vehicles on the planet.

Sadly, the Obama administration was essentially a no-show in Durban, electing to send a low level delegation and keeping a low profile with an eye toward the 2012 elections. Overtures from the Chinese were rebuffed; expectations were constantly lowered; no substantive proposals were forthcoming. This may be good negotiating strategy for a trade agreement but not when the stakes are the future of civilization on earth.

While some may argue that any agreement is better than no agreement, Durban could turn out to be a suicide pact unless the major greenhouse gas emitters come to their senses, stop posturing and immediately commit to de-carbonizing the global economy. Last year saw a record increase in CO2 emissions of nearly six percent despite a weak economy. By 2020, we'd better have turned that around. Another "instrument" won't cut it.

Justice for All: VT Law School Supports Poverty Law Coalition, Fellowships

Vermont Law School — 02 Dec 2011 17:00:00 EST

Continuing its tradition of supporting access to justice for all, Vermont Law School and VLS's South Royalton Legal Clinic recently helped host a reception for the Vermont Poverty Law Fellowships program and Vermont Access to Justice Coalition.

The Nov. 28 event in Montpelier included U.S. Rep. Peter Welch, who said the Vermont legal community's ongoing support for the Fellowships has enabled the program to attract candidates nationally to fill a position that contributes to the well being of Vermont's residents, legal community and courts.

Vermont Poverty Law Fellows Grace Pazdan (2008-2010) and Jessica Radbord (2010-2012) told moving stories about clients they have helped--Pazdan as foreclosure crisis fellow and Radbord as safe housing fellow.

Representing VLS at the event were Professor James May, director of the SRLC, and Professor Kinvin Wroth.

The Vermont Access to Justice Coalition includes the Vermont Supreme Court, Vermont Bar Association, Vermont Bar Foundation, Vermont Law School, South Royalton Legal Clinic, Law Line of Vermont, and Vermont Legal Aid. Coalitions similar to Vermont's exist in most states and all are focused on increasing access to justice.

The Vermont Access to Justice Coalition meets monthly at the Vermont Supreme Court. Members share their expertise to craft solutions designed to improve legal representation for low-income Vermonters in civil cases. Two major current efforts are the Access to Justice Campaign, which funds the Vermont Poverty Law Fellow, and a new civil legal needs canvassing effort being conducted in counties across the state. The coalition also works to create new pro bono and low bono (moderate fee for service) opportunities for legal representation of Vermont's indigent citizens.

ENRLC Weighs In On Nitric Acid Rulemaking

Vermont Law School — 30 Nov 2011 17:00:00 EST

Vermont Law School's Environmental and Natural Resources Law Clinic (ENRLC) recently submitted comments to the Environmental Protection Agency on the agency's proposed revision of its outdated air pollution standards for nitric acid plants. The ENRLC submitted the comments on behalf of the Environmental Integrity Project, Sierra Club, and Natural Resources Defense Council.

The EPA has proposed strengthening the standard for nitrogen oxides (NOx) from new, modified, and reconstructed nitric acid plants to limit ozone, particulate matter, visibility, acid rain and other end results of NOx pollution. But the agency has failed to propose any standard for nitrous oxide (N2O) emissions. N2O is a powerful greenhouse gas with a global warming potential 310 times that of carbon dioxide, and the nitric acid industry is the largest industrial source of such emissions. Most nitric acid is used to produce fertilizer.

The ENRLC's comments express support for the stronger NOx standard but emphasize that the EPA's failure to include a nitrous oxide standard is unlawful. The agency's final rule is due by March 30, 2012.

There are an estimated 40 nitric acid plants in the United States. The proposed rule would only apply to those facilities if they modified their production facilities. The EPA estimates that six new facilities will come on line over the next five years and be subject to these requirements. The agency estimates the total annual costs to comply with this proposed rule would be negligible for the industry and consumers. These technologies have the ability to eliminate well over 90 percent of nitrous oxide emissions.

The ENRLC's Chris Ahlers and Ken Rumelt, both LLM Fellows, and Monica Litzelman, a litigation paralegal, prepared the clinic's comments and assembled scientific studies and other supporting materials for inclusion in the administrative record.

Read the comments.

Read the EPA's fact sheet.

The EPA is also developing greenhouse gas standards for power plants, petroleum refineries, and other industrial categories, but it has not issued standards for any of these industrial categories.

Professor Teresa Clemmer

"Over the past two years, EPA has taken remarkable steps to begin regulating greenhouse gases under the Clean Air Act," said Associate Professor Teresa Clemmer, acting director of the ENRLC. "Its initial rules have focused on mobile sources and facility-by-facility permitting under the Prevention of Significant Deterioration permitting program. Many environmental groups believe one of the most important next steps is sector-by-sector regulation of stationary sources under the New Source Performance Standards program. Through petitions and litigation, environmental groups are pressuring EPA to begin regulating power plants, petroleum refineries, Concentrated Animal Feeding Operations, and other industrial sectors. As part of this effort, the ENRLC has been representing the Sierra Club and Environmental Integrity Project in a deadline suit against EPA relating to its overdue review of the NSPS for nitric acid plants."

Speth Unveils Blueprint For "New America"

Vermont Law School — 04 Nov 2011 16:00:00 EST

The road to the apocalypse isn't necessarily a dead end.

So says Vermont Law School Professor Gus Speth, a founder of the modern environmental movement who in a recent lecture series at VLS brutally indicted what he called an American plutocracy dominated by greed, money and power.

But at his third and final lecture on Nov. 3, Speth concluded it isn't too late for a populist uprising to install a democracy fueled by a sustainable economy, peace, income equality, justice and respect for the environment. The lectures were drawn from Speth's upcoming book to be published next year.

"A successful America is still possible," he said.

Speth said the United States was drowning in poverty, pollution and most other indexes of well being. He blamed politicians and corporations obsessed with profit, power and relentless economic growth.

He called for a new political system and a progressive form of capitalism devoted to sustainable jobs, public health, clean air and water, education and other areas of well being. "Devotion to the public good and human solidarity, not private interests," he said.

Such a system will only come about through a grassroots movement and civil disobedience, which may already have begun with efforts by Occupy Wall Street, MoveOn.org, American Dream Movement, 350.org, World Social Forum and other progressive groups, he said.

He said transformative change will require struggle. "'Power concedes nothing without a demand,'" he said, quoting Frederick Douglass.

Speth laid out 10 goals for a new America:

• A reformed voting system in which citizens are automatically registered to vote when they turn 18, Election Day is a national holiday and a National Elections Commission ensures voting integrity.
• A Constitutional amendment to directly elect the President or require that states give all their electoral votes to the top popular vote getter.
• Primary elections open to all parties and candidates.
• No more gerrymandering.
• A break up of the two-party monopoly.
• An end to filibusters in Congress.
• Campaign finance reform.
• A Constitutional amendment to deprive corporations of "personhood" and require shareholder approval of corporate political donations.
• All candidates have equal access to the media.
• Restrictions on lobbyists, including no campaign fundraising or bundled contributions.

Speth, who joined VLS in 2010, is a former dean of the Yale School of Forestry and Environmental Studies, administrator of the U.N. Development Programme, chair of the U.N. Development Group, founder of the World Resources Institute and co-founder of the Natural Resources Defense Council.

VT Law School Professor Calls For "Revolution," New Political and Economic Order

Vermont Law School — 07 Oct 2011 16:00:00 EST

Gus Speth loves his country. He also thinks it's dying and that a revolution is the only way to save it.

"There's still hope, but it's time for civil disobedience," the Vermont Law School professor said.

Speth, a founder of the modern environmental movement, declared his passion for the United States on Thursday at the start of his three-part lecture series titled "America, Rising to Its Dream: Charting Passage from Today's Decline to Tomorrow's Rebirth." But he also declared the United States an empire rotting from within, plagued by worsening rates of poverty, disease, infant mortality, crime, poor student performance, pollution and nearly every other index of well being.

"I love this country, but I'm profoundly angry" at how it's been neglected, he said.

Speth blamed America's decline on politicians, corporations and military leaders whom he said are obsessed with profit, power, consumerism and the mistaken belief that economic growth and military might are marks of well being. The current economic crisis and high unemployment are exacerbating a growing income gap between the rich and poor, fueling health, social and environmental problems, he said. U.S. military spending now exceeds the rest of the world combined, draining trillions of dollars a year that could be invested in jobs, public health, clean air and water, education and other areas, he said.

America's economy and political system are collapsing because they failed to build on the principles of the New Deal and the Universal Declaration of Human Rights from the Roosevelt and post-World War II era, he said.

"Instead, we unleashed ruthless corporate, consumerist capitalism," he said. "The United States has changed from a democracy to a plutocracy and corporatocracy."

Speth said the solution to America's woes is a social movement that creates a new economic and political system-"a new American dream" based not on growth but on a progressive platform of fairness, justice, sustainability, peace, well being and living in harmony with the planet. He said the current system can't be fixed and that "transformative change" is needed to create a new democratic order-"not yesterday's socialism or today's capitalism."

Speth said recent protests against a proposed major oil sands pipeline and Wall Street could be the start of a citizens movement that prompts widespread social reform. "It all comes down to the American people coming together to fight for real democracy and devotion to the public good, not private interests," he said.

Speth's lecture series, which is based on his upcoming book, will continue Oct. 20 and Nov. 3 at the Chase Community Center on VLS's campus. Click here for more information.

In Memoriam: the Vermont Law School Gazebo

Vermont Law School — 07 Oct 2011 16:00:00 EST

Vermont Law School's iconic gazebo, which was swept away by floodwaters from Tropical Storm Irene, was memorialized in words, photos and video in a blog post by TruexCullins, the Burlington architectural and interior design firm that created the gazebo.

"The gazebo on the edge of the Oakes Hall parking lot at the Vermont Law School campus was a humble, intimate structure designed for individuals to peacefully reflect and quietly ponder their place in the natural environment," according to the blog.

The gazebo was designed by Rolf Kielman, who also led the historic renovation and addition to the school's Debevoise Hall. In 2006, the VLS gazebo was awarded the AIA Vermont Excellence in Architecture Design Award for a Small Project. The jury thought the project had "charm, pure, simple elegance" and was "very inviting".

Read the blog post.

Second Environmental Colloquium Draws Global Scholars

Vermont Law School — 29 Sep 2011 16:00:00 EST

Some of the world's most prominent environmental law and policy researchers met Oct. 23 for Vermont Law School's second annual Colloquium for Environmental Scholarship to gather feedback on their works in progress.

"The colloquium fosters informal discussion and debate at every turn, and our attendees say it's already become the must-attend event for environmental law professors wanting to get input on their research," said Professor Jason Czarnezki, who organized the colloquium for the Environmental Law Center. "The addition of paper discussants this year was a great success, and we hope to add some last-minute 'hot topic' sessions for next year."

The colloquium was attended by 65 professors and academics doing research in environmental and natural resources law at the University of California-Berkeley, the U.S. Military Academy, UCLA, New York University, Vermont Law School and elsewhere. All 44 papers presented were at a revisable stage.

Highlights included a panel where Georgetown Law Professor Hope Babcock and VLS energy professors Michael Dworkin and Don Kreis debated the proposed closure of the Vermont Yankee nuclear plant, whose fate is being determined in federal court; panels featuring presenters and audience members from China, Hong Kong, Sweden, Australia and the United States discussing Chinese environmental law implementation, tensions between Swedish and European Union water law and other international issues; and Florida State Law Professor Robin Kundis Craig's paper titled "Public Health, Private Land, and Public Necessity."

Czarnezki developed the colloquium because he saw a lack of opportunities for scholars to discuss their works in progress with colleagues at other schools, especially in environmental law.

"Other academic fields have conferences and colloquia focused on current and recent scholarship, and I wanted to bring that model to legal scholars who research environmental and natural resources law and policy," said Czarnezki, who is faculty director of VLS's U.S.-China Partnership for Environmental Law.

Prof. Hanna Picks U.S. Supreme Court Cases Vermonters Should Watch

Vermont Law School — 27 Sep 2011 16:00:00 EST

By Cheryl Hanna
Professor of Law, Vermont Law School

The first Monday in October marks the first day of oral arguments at the U.S. Supreme Court. So far, the Court has granted about half of its usual 80 or so cases that it will decide by June of 2012. And while there is no case yet on the docket that has originated in Vermont, there are many cases that may be of interest to Vermonters either because the outcome could impact our state or because the case is just super interesting. Here's my list:

1. National Meat Association v. Harris: Some of you may have heard my VPR commentary on this case. It involves pre-emption and as any Vermont Yankee trial-watcher can tell you, pre-emption is the central question in that case as well. In National Meat Association v. Harris, the Supreme Court will decide whether a California law that requires slaughterhouses to immediately euthanize animals that are unable to walk - sometimes referred to as downed animals - conflicts with the Federal Meat Inspection Act, which requires that such animals be separated and observed for disease but not immediately killed. There's always the fear that the downed animal has a disease that can be passed onto humans. Under federal law, many of these downed animals do end up being slaughtered and eventually eaten. Under California law, no downed animal would be in the food supply. California claims that it's regulating the ethical and humane treatment of animals, a different motive than food safety, which would be pre-empted under federal law. Sound familiar? This case could provide some guidance to lower courts on how to evaluate the VY case. It's also an important case to watch because Vermont lawmakers may decide to impose stricter regulations on our slaughterhouses, and this case will set the parameters for when a state can do so in light of federal law.

2. Douglas v. Independent Living Center: The outcome of this case could have significant consequences as Vermont tries to develop the first single-payer health care system. This, too, is a pre-emption case involving Medicaid payments to health care providers. Medicaid is a voluntary joint federal/state program. The feds provide money to the states, which then must comply with certain federal regulations, including making sure that payments are reasonable enough to ensure a certain quality of care. California, facing big budget problems, passed a law reducing Medicaid payments. A bunch of groups, such as the Hospital Association, as well as patients that receive Medicaid payments sued to stop California from implementing its law. The technical legal question is whether federal law pre-empts these folks from suing, meaning that only the federal government, because it provides the money, can stop a state from lowering payments. The bigger question is whether states will now have to defend against lawsuits from providers and patients whenever they set rates. Vermont Attorney General Bill Sorrell signed onto an amicus brief asking the Court to side with the state of California.

3. Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC: This case is mostly interesting to me because I attended Hosanna Tabor, a small parochial school in Redford, Mich., a small, working class suburb outside Detroit from first through sixth grades. (What are the odds that there would be a SCOTUS case from my alma mater?) This case involves a really interesting question about the separation of church and state. The case involves a teacher who developed narcolepsy and went on medical leave. When she tried to return, the school had given away her job and then fired her. She sued under the Americans with Disabilities Act, which would have forbidden the school from doing so. But the school claimed the teacher was exempt from federal law because she was "called" to teaching and performed duties not so dissimilar from that of a minister. Ministers and other clergy are exempt from federal employment law under the theory of the separation of church and state. But janitors that work at a church still are protected because they do not perform religious functions. The question before the Court is whether parochial school teachers who teach mostly secular subjects but have special religious training are also exempt from federal law. The Equal Employment Opportunities Commission argues that exempting teachers would leave thousands of employees (mostly women who teach for salaries below those of their public school counterparts) without workplace protections when religion is not the reason for the firing. Hosanna Tabor says the federal government should not impose its laws on the church. By way of full disclosure, I signed onto an amicus brief filed by other law and religion professors in support of the EEOC position. In Vermont, we do not have an abundance of parochial schools, but the ruling could affect any teacher at a parochial school in our state.

4. United States v. Jones: This is the criminal case to watch this year. At issue is whether the police can put a GPS tracking device on your car, indefinitely, either with or without a warrant. It is one of those classic Constitution-meets-new-technology cases-and a little Big Brother-ish! Police had a warrant in the Jones case and tracked an accused major drug dealer. Interesting question for Vermont is whether, if the Court holds that there is nothing wrong with such tracking under the U.S. Constitution, whether the Vermont Supreme Court will part ways and require greater protections for privacy under the state Constitution as it has sometimes done. And don't forget we are waiting the appointment of a new Vermont Supreme Court justice to fill the seat vacated by retired Justice Denise Johnson. She was committed to departing from federal standards when it came to the rights of criminal defendants. It will be interesting to see if the new justice follows in her footsteps.

5. M.B.Z. v. Clinton: This case falls into the category of super interesting but not much direct impact on Vermonters. During the Bush administration, Congress passed a law requiring the secretary of State to record the place of birth on passports of U.S. citizens born in Jerusalem as Israel, if they request that. While President Bush didn't veto the law, he did say in a signed statement that he would not necessarily comply with the law if it frustrated foreign policy. Then and now, State Department policy is to record only Jerusalem as the place of birth given the ongoing dispute in the Middle East. This policy allows the United States to stay neutral relative to disputed territory, but Congress maintained that individuals should have the personal choice to list Israel and that such a policy would have little impact on foreign relations. The Court has to decide two things: First, can it even hear this case, or is this simply a political dispute between the executive branch and Congress. Second, if they do hear it, did Congress encroach on the president's authority under the Constitution to recognize foreign nations. It is a very important case on the balance of powers. My Constitutional Law class used M.B.Z. as a case study and ultimately split evenly on whether the president can ignore Congress on this one. This one is very hard to predict, but the outcome will expand or limit the powers of the president in the area of foreign relations.

6. CompuCredit Corp. v. Greenwood: This is the most important case on the docket that could affect the rights of consumers, including Vermonters. Congress passed the Credit Repair Organization Act (CROA) to protect consumers from credit repair organizations' unfair practices. Many of these organizations prey on the financially vulnerable, promising to help folks with debt but instead taking their money and making matters worse. In the language of the CROA, Congress gave consumers the "right to sue" these organizations. But CompuCredit had consumers sign agreements stating they would agree to binding arbitration, forgoing the right to sue in court, which is the legal venue in which consumers often fare much better. The Court will have to decide if Congress intended the term "sue" to include arbitration, noting that the federal government has long favored arbitration as a means to settle disputes. In recent years, the Court has made it difficult to bring class action lawsuits and held that federal arbitration statutes pre-empt state laws allowing for consumers to go directly to court. This case is widely expected to be another win for industry.

7. Sackett v. EPA: This is no doubt one of the most important cases for environmental advocates and lawyers. It could seriously undermine the ability of the EPA to enforce the Clean Water Act and other federal environmental laws. The Sacketts purchased land in a residential subdivision in Idaho and filled a wetland to build their home without EPA approval. Afterward, the EPA determined this land constituted a protected federal wetland and served the Sacketts with an administrative compliance order charging a violation of the Clean Water Act. The order required the Sacketts to reverse the changes they had made to the land and threatened civil and criminal penalties without permitting the Sacketts to challenge the order. The Sacketts argue they have the right to sue in federal court before complying with the order, and that the order violates their right to due process.

8. The Constitutionality of the Affordable Care Act: This important case is not yet on the docket but soon will be. There are a number of cases making their way to the Supreme Court on the question of whether the federal health care legislation that requires individuals to purchase health insurance or pay a penalty violates the Constitution, particularly Congress's power under the Commerce Clause. This case is a big deal for Vermont because our new health care plan is partially dependent upon more universal health coverage at the national level. If the Court strikes down part or all of the ACA, Vermont may have a much harder time implementing and paying for our health care system. Many expect that the Court will take on at least one of these cases this term, issuing an opinion by June 2012, just a few months before the next presidential election.

VT Law School's Response to Irene Exceeds "Highest Expectations"

Vermont Law School — 15 Sep 2011 16:00:00 EST

When the White River raged on Sunday, Aug. 28, it literally changed the landscape of Vermont Law School and nearby communities. Uprooted trees were scattered across fields; farms were transformed into mud pits; floodwaters swirled through homes; roads collapsed; and bridges were broken.

Royalton Bridge. Credit: Top Kat Photo

Yet while Tropical Storm Irene caused much damage, it also strengthened the foundation of a community as VLS students, faculty, staff and alumni responded with an outpouring of donations, manual labor and legal aid to help their neighbors recover.

"There was a tremendous amount of spontaneous work," VLS Dean Jeff Shields recalled of the first few days after the floodwaters hit. "It was that fanning out into the community and neighboring communities, and thousands of hours of students and staff time trying to be of help at the early, crucial stage. I'm proud of what our people did."

Chris Foy '12. Credit: Valley News - Polina Yamshchikov

The law school had its own matters to deal with as the storm caused about $500,000 in damage to buildings, parking lots, the outdoor classroom and Internet servers. There were also logistical issues to address when faculty and students in outlying areas were cut off from campus as the first day of a new school year approached. And there was the immediate challenge of finding housing for students, faculty and staff who were rendered homeless by the damage.

Within days after Irene's deluge, VLS had set up an email address for contributions and created a web page to guide local residents to helpful resources. Three VLS staffers were assigned to work with local communities on flood relief efforts, while the Land Use Clinic and South Royalton Legal Clinic offered help to residents with FEMA applications and insurance claims.

Perhaps most critical to the recovery effort, an estimated 250 VLS students answered the call for clean-up help, many of them mucking through dense mud and silt, others collecting clothes, serving food to volunteers and doing other tasks.

VLS students removed mud from flooded homes. Credit: Katie Thomas '13

"The response of the students went beyond my highest expectations," Shields said. "There were so many who reached out to help other people. There are a lot of other things they might have done, and instead they found work boots, work gloves and waders and they pitched in and went at it."

Associate Dean Shirley Jefferson added: "I'm not shocked and I'm not surprised at our students coming to help," said Jefferson, who first arrived at VLS in 1982 as a student. "I'm happy now that there are so many people who can see the beauty and the compassion in our students, things I've always known but now everyone knows."

Operation Revive Royalton

Sarah Buxton JD '10 was among those who quickly went into crisis-response mode. Still in her first year as state representative for Royalton and Tunbridge, she toured the area on Monday morning as the floodwaters were still receding. "It was very clear that the devastation was pretty enormous," she said.

Sarah Buxton '10. Credit: Top Kat Photo

Checking in with local fire and rescue workers and constituents, she learned of the five feet of standing floodwater in the South Royalton School. "I asked the principal if I could organize volunteers and try to start mobilizing people in response to the shock, and start the momentum towards recovery and rebuilding," said Buxton, who also works in the VLS Office of Institutional for Advancement.

Within hours, she had created a Facebook page and established "Operation Revive Royalton." With the help of a few tech-savvy friends, a website soon went up to solicit donations and organize volunteers to help those affected by the storm. "It became an extremely organized operation," she said, noting that in its first days, the effort drew 1,000 volunteers and had raised nearly $20,000 in donations. She went to a hardware store to buy supplies for the clean-up effort, draining the reserves of her campaign fund in the process, and then went knocking on doors to round up VLS students for the effort. "I don't think there's a single person in our town who would say that VLS wasn't integral to the recovery," she said.

Jeff Fucci '14, Carissa Wong '12, Peter Dysart '14 and Molly Gray '14 (left to right). Credit: Carissa Wong '12

And in hindsight, Buxton believes her law school experience has served her well in reaching out to constituents during such a challenging time. "I knew going through law school that I might not be a typical lawyer, but many professors would always talk about the different skills we are gaining through various exercises or class projects," she said. "Whether analytical skills, communications skills, troubleshooting or understanding your client, I knew I had the toolbox of skills that I could draw upon."

Clinics Offer Help--And Experience

Completing the paperwork for federal assistance or insurance claims can be a daunting task for anyone, let alone for residents traumatized by losing their most cherished possessions or having pieces of their home swept downriver. Many victims of Irene also didn't have computers or phone lines available to do so. That's where the VLS Land Use Clinic and the South Royalton Legal Clinic stepped in.

Floodwaters dumped debris on the VLS campus. Credit: Top Kat Photo

Just three days after the storm hit, the clinics started to help residents file FEMA's required paperwork or refer them to attorneys for legal help. The Land Use Clinic aided 25 residents in the first two weeks after the flood, said Kat Garvey, a staff attorney and assistant professor. The clinic was staffed by 30 students who volunteered their time, along with 10 faculty and staff members. Its doors will be open six hours a day for six days a week until the end of September.

"I'm so proud of the work that students and faculty at the Land Use Clinic and SRLC have done," said Margaret Barry, Acting Dean for Clinical and Experiential Programs. "It's especially heartening to see even first-year students helping for days on end."

Several people that the Land Use Clinic served had lost their homes and all of their possessions. Others had lost their crops, livestock, work vehicles and equipment -- their entire lives. "These were very hard stories to hear," Garvey said.

There were also cases in which insurance companies made low offers to settle claims, according to Garvey. These cases were referred to outside attorneys because they were beyond the services that the clinics could provide. "What was critical was for these people to get sound advice before accepting the settlements," she noted. But in most cases, the flood victims simply needed help with the registration process for the Federal Emergency Management Agency, which would determine if they are eligible for grants covering up to $30,000 in losses.

Flooded Oakes Hall parking lot. Credit: Top Kat Photo

"I think the main advantage for the students is client counseling," Garvey said. "There are people coming in who have just experienced trauma. They are often vulnerable and ill equipped to respond to the FEMA process. This gives the students an opportunity to learn the important skills of listening, recognizing that empathy is appropriate and useful in helping people, and to learn that by applying these skills they can provide help in the administrative process and identify the legal issues that require referral."

And their help has clearly been appreciated by those needed it. "Despite the trauma, everyone who has come in has been very gracious," Garvey said. "Not only have they said ‘thank you' to everyone who helped them, but they've said ‘thank you' to the whole room."

Shelter from the Storm

Before he enrolled in law school, Janssen Willhoit spent a year working as an AmeriCorps volunteer in a Kentucky rescue mission, serving as an employment counselor with displaced residents. The experience served him well in the aftermath of Irene.

Now a 2L, Willhoit and his wife had attended church services and were trying to make their way from Bethel back home to Tunbridge during the height of the storm. They found their normal route impassable so they took the back roads from Randolph Center, where the Vermont National Guard was on standby at Vermont Technical College to rescue flood victims.

Janssen Willhoit '13. Credit: Janssen Willhoit '13

The next morning, Willhoit began calling churches to find help for residents displaced by the flooding. What materialized was an agreement with VTC to use unused dormitory space as a temporary shelter for evacuees. Many had been treated for injuries at the local hospital and released but were unable to return to their damaged homes. The dorm rooms housed up to 20 people. Some came with bandaged wounds. Willhoit worked with Buxton to arrange for an emergency medical technician to volunteer at the shelter. A home health nurse also came to the shelter each day.

A 94-year-old woman was among those displaced. She suffered an ankle injury in the evacuation. "It took a couple of us to help her and move her. She was a really sweet lady," he said. He worked on having her admitted to a nearby nursing home after she spent several days in the shelter. Willhoit was there around the clock until classes got underway two days later than scheduled due to Irene. He then continued serving at the shelter on the overnight shift, reporting in at 9 p.m. and staying through the early morning hours.

"It Looks Like a War Zone"

Fox Stand Bridge. Credit: Top Kat Photo

Peg Trombly was one of three VLS staffers named to help local communities in the days after the flood. She had served on the Royalton Select Board for five years, including a term as chairperson. Three days after Irene hit, she attended the select board's community meeting, where residents discussed the volunteer response and plans for rebuilding.

"What I took away from that meeting is that there was a wonderful sense of everyone doing their own thing, yet pulling together in such a disaster to reach out and be of assistance," said Trombly, who praised the efforts of the local fire and rescue workers who evacuated residents and then parked their equipment on both sides of the river, so people wouldn't be cut off if the bridges failed.

"A disaster of this magnitude, it was far from people's realization that this could happen. The height of the water was much higher than it has ever been," she said, recalling her drive down Back River Road after the storm. "It's so hard to even process, you just can't believe it. It looks like a war zone with the trees all down. It took a couple of drives down there for me to realize what happened."

J.P. Isabelle '11. Credit: Herald - Tim Calabro

Trombly believes the outpouring of support from the students and staff, combined with plans for the first VLS Community Day on Sept. 24 -- a celebration of the relationship between VLS and South Royalton that was planned long before the storm hit -- are all positive factors in helping with the traditional town-gown relationship.

"Certainly the law school offered up their services in wonderful ways. Students participated in amazing numbers," she recalled. "Just the response of the students has been amazing. It was right at the beginning of school and it was a difficult time." And the select board acknowledged the law school's contributions at that initial meeting, she said, adding, "They expressed appreciation."

Efforts from Afar

From more than 800 miles away, Doug Mulvaney JD '83 followed the news of Irene's damage in Vermont, looking specifically for reports about South Royalton. He found a story about damage to the South Royalton School's music room and the instruments it housed. He sent an email to Vermont Law School's newly established contribution link with an offer of help.

Marissa Knodel '13. Credit: Herald - Zach Nelson

"I live in Elkhart, Indiana, the headquarters for many band instrument companies," he wrote. "If the high school is in need of replacement instruments, I would be happy to see what I could do regarding donations."

Mulvaney has since been in touch with the school's band director and is working to find a company willing to donate or at least sell instruments at cost. He was just one of many alumni who checked in with offers of help, spurred to action by the frustration of being unable to work directly on the clean-up effort.

"I like to help out," Mulvaney said, describing himself as "a recovering band parent" whose college-aged daughter plays trombone in a jazz band.

"I Could Have Lost More"

South Royalton Bridge. Credit: Top Kat Photo

As associate director of the VLS Land Use Clinic, Peg Elmer is well versed in adaptation and mitigation issues and the worsening storms brought on by climate change. When she bought her circa 1805 two-story Cape home four years ago, she researched its history and learned that it had taken on water in the historic 1927 flood. The house, alongside Route 14 about a mile north of campus, was not mapped in a flood plain, but Elmer knew the scenic White River could crest its banks. "It's a very flashy river," she said. "It goes up and down a lot." She bought flood insurance, hoping she would never have to use it.

As the reports on Irene developed, she checked her sump pumps and was prepared to wait out the storm. But shortly after noon that Sunday, still hours before the brunt of Irene was to hit the area, she watched the river suddenly rise three feet. She called the fire department to say she and her tenant, a VLS student, were planning to evacuate. He told them to leave right away.

When she returned a day later via Route 14 in Sharon, she sensed her home may have been hit hard as she saw the damage that the river caused further downstream. She found her home still sitting on its foundation - "it hadn't budged" -- but the river ran through it.
"It slammed through my house at a level of four feet high and floated my piano," Elmer said. "There was furniture swirling inside."

Two weeks after the storm, the house had been stripped to bare bones and Elmer was contemplating her plans to rebuild. Does she build four feet higher this time? She recognized the ironies involved, the dilemma of rebuilding in an area that may be prone to flooding and that her background in land use is what prompted her to be among the few to have flood insurance. And then she managed a moment of humor in reflecting on her work. "A lot of our projects (at the Land Use Clinic) have a filter of climate change and increasing storm events," she offered. "I'm immersed in the topic."

The help of as many as 60 volunteers in a day and the support of VLS staff have helped her through the reality of hauling 16 truckloads of ruined belongings away, including her 200-year-old wide pine floors. "I could have lost more," she said, "that's for sure."

Kirsch House. Credit: Top Kat Photo

Professor Barry and her husband, Pat Barry, evacuated VLS's Kirsch House, where they had just moved in July. "We saw the river rising, but it was not until it broke its banks that we got wary. We began to move very fast once it started to cover the nearby parking lot," she said. The Barrys grabbed some belongings and put them in their car, along with their dog. "When we left, we thought the house would be pushed off of its foundation and float down river."

That didn't happen, but the house sustained major damage. The next day, a brigade of students arrived to help pack the belongings that had not been ruined by the flood. "It was so heartening to have the students there. Their energy and resourcefulness allowed us to move past the shock of having the home we had just set up turned upside down," Barry said.

The Bucket Brigade

Rob Caron is a local landlord who rents many of his properties to VLS students and faculty. One such property, a ranch house along South Windsor Street, was particularly hard hit. It housed a VLS faculty member and her spouse.
"All of their possessions were gone," he said, noting the flood waters left a foot of mud throughout the house. Caron recognized that quick action would be critical to salvaging his properties. Carpets, flooring and drywall needed to be removed before mold set in.
And he needed help in not just one house but five.

Jennie Demjanik '13 and Sara Li '13. Credit: Herald - Tim Calabro

"It was just overwhelming. Between the law school and the community, people just started pouring in to help," he recalled. At one point, Caron counted upwards of 50 people in one of his homes working bucket brigades - half of them in the cellar and the others on the first floor.

The VLS students were a determined lot.

"Every day until classes started, they came. And every day a different group came. Even after classes started, if they didn't have morning classes, they came," he said. To his surprise, many of the students were just entering their first year at VLS, so they hadn't even had time to establish ties to the area.

"It was hard for them to go back to class. They said they wished they could just stay here to help," he said. "They showed a certain amount of social responsibility."

See more photos.

Vermont Law Professor Gus Speth Walks the Talk

Vermont Law School — 23 Aug 2011 04:00:00 EST

Vermont Law School Professor Gus Speth was arrested Aug. 20 in Washington, D.C., at the start of the Tar Sands Action, a civil disobedience effort to stop the proposed Keystone XL Pipeline.

The proposed pipeline would send more than 800,000 barrels a day of mining oil to U.S. refineries and and further increase the development of the Alberta tar sands.

Speth, an expert in climate change and environmental ethics, released the following statement from jail:

"We, the prisoners being held in the Central Cell Block of the D.C. Jail, need company and encourage the continuation of the protests against the tar sands pipeline. Help us stop this disastrous proposal! I've held numerous positions and public office in Washington, but my current position feels like one of the most important."

"Hat's off to Gus Speth for speaking truth to power. President Obama, there's your role model," said VLS Professor Pat Parenteau.

View Professor Speth's comments at the Tar Sands Action.

Supreme Court Ruling on AEP v. CT: While Round One Was Promising, Round Two Left Much To Be Desired

Vermont Law School — 15 Jul 2011 04:00:00 EST

This article is by Vermont Law School student Nolan Riegler ‘12

Judge Peter Hall of the U.S. Court of Appeals for the Second Circuit joined Vermont Law School professors Pat Parenteau and John Echeverria for a panel discussion June 30 at VLS, where they analyzed the U.S. Supreme Court's recent decision in American Electrical Power Co. v. Connecticut. Judge Hall, a VLS trustee, authored the federal appeals court's decision in Connecticut, which was reversed by the Supreme Court.

At issue was whether stationary emitters of greenhouse gasses (GHGs) could be sued for creating a public nuisance under federal common law. The defendants were five utilities, whose power plants were responsible for nearly 25 percent of the nation's and 2.5 percent of the world's carbon dioxide emissions.

The district court held that the issue was a non-justiciable "political question" and dismissed the case. The second circuit determined the issue was not a political question; that at least some of the plaintiffs (who were an amalgamation of several states and land trusts and New York City) had standing to bring the suit; and that emitters could be sued under federal common law so long as the U.S. Environmental Protection Agency had not yet enacted regulations for GHGs as it is authorized to do under the Clean Air Act.

The Supreme Court evenly split on the issue of standing, which resulted in it affirming the Second Circuit's ruling that at least some of the parties had standing to bring the suit—without any official comment. The Court reversed the Second Circuit's holding on the merits, however, holding instead that the EPA's authorization under the Clean Air Act displaced claims made under the federal common law.

The breadth of that displacement was up for debate among the panelists at VLS. All three agreed the Supreme Court's holding only affected suits made under federal common law. Whether an entity could sue under a state's common law was left open by the Court, although that issue has been addressed in North Carolina v. Tennessee Valley Authority and will likely appear before the Court next year. In that case, the Fourth Circuit held that state law nuisance claims are also displaced by EPA regulations. The Fourth Circuits' decision distinguished Oulette v. International Paper, a case originating in Vermont, where the Supreme Court held that state common law nuisance actions are permitted under the Clean Water Act's savings clause. Thus, a state could sue an entity in federal court for public nuisance and the court would apply the law of the source state.

All of the VLS panelists agreed the factual circumstances changed dramatically between the time Connecticut was filed and the time it was heard by the Supreme Court, and these changes contributed significantly to the case's outcome. In a nutshell, the Court decided Massachusetts v. EPA, which held that the EPA did have the authority to regulate GHGs under the plain language of the Clean Air Act. As Professor Parenteau explained, Connecticut and Massachusetts were attached at the hip from the start. They were part of a two-pronged litigation strategy to pressure government and industry to take more decisive action to control GHG emissions and combat climate change. Relying on the Massachusetts decision, the Obama administration's EPA defined GHGs as pollutants and has taken steps to further regulate them. Indeed—as Justice Ginsburg pointed out in the Court's opinion—the EPA is developing regulations intended to do exactly what the Connecticut plaintiffs want to achieve under the common law: Force industry to abate its GHG emissions.

Both Judge Hall and Professor Echeverria agreed that under this decision, the mere passage of the Clean Air Act displaced the federal common law. Professor Parenteau was less convinced, noting the EPA had taken some concrete steps to begin regulating GHGs since the Court's decision in Massachusetts. He believed there was some wiggle room in this opinion and that it could be argued that concrete steps by the authorized agency needed to be taken for displacement to occur.

Still, Professor Parenteau focused on nuisance claims for damages. He explained that the Connecticut Court only held that "any federal common law right to seek abatement of carbon-dioxide emissions" was displaced. Thus, a case could be made for certain claims, particularly those that can not be dealt with by any form of EPA regulation. As an example, he described the plight of the indigenous people of Kivalina village in Alaska, whose case will soon be heard by the Ninth Circuit. Due to climate change, the island upon which the village is located is being flooded by the sea and the community will soon be forced to relocate at a cost of nearly $400 million. To determine who should pay for the relocation, the Kivalina people could argue that the Connecticut decision did not displace nuisance claims for damages under the federal common law. Thus, stationary emitters of GHGs should be liable for their relocation, not the people themselves or government agencies.

Professor Echeverria said this decision is another in a trend to displace common law claims in the face of administrative regulatory authority. In essence, it's another in a long line of decisions that effectively neuter the common law and shift greater authority onto administrative agencies and the rulemaking process. Federal agencies were originally empowered, he said, to combat a relatively ineffective judiciary, but nearly the opposite is true today. We continue to empower federal agencies and weaken common law causes of action even as these agencies appear to be less effective at enforcement. Even so, agency actions and lack of action can be challenged in court, and this opinion does nothing to change that. If the EPA's eventual rules for GHGs seem ineffective or the agency drags its feet long enough in promulgating them, states and individuals can bring a cause of action against the agency. But as the Kivalina case makes clear, this process does little to help the future victims of climate change, whose numbers are expected to increase in the future.

Indeed, Justice Ginsburg's opinion in Connecticut, which glossed over the complexities of GHG litigation and addressed the displacement question as a predominantly academic issue, lacked the sense of urgency Justice Stevens brought to the table in Massachusetts. While it may be true the question is academic, it does not change the fact that its answer—and the degree of GHG abatement that may result from it—will have significant global consequences. One can only hope the Court still sees the urgency of the issue as more "academic questions" probing the depth of displacement and the strength of the common law reach its hallowed halls.

While Justice Ginsburg's opinion left much to be desired, Judge Hall noted that her reasoning pressured Congress to keep the EPA's authority in place. In sum, since the Court determined the federal common law injunctive actions were displaced by the EPA's authority under the Clean Air Act, removing that authority would reinstate the common law. The result would be that stationary GHG emitters would be subject to suit for public nuisance under federal common law. Thus, some conservative members of Congress, presidential candidates and industry supporters who have called for stripping the EPA of that authority are likely in a better place to leave well enough alone.

A final positive note is best described as what the Court did not do as opposed to what it did. A novel and unprecedented standing argument made by the solicitor general—that federal courts should preemptively bar standing on prudential grounds to all federal nuisance claims—received no traction in the Court. Moreover, the Court's four-four split, with Justice Sotomayor recusing, means that a narrow but clear majority of the present Court favors recognizing standing in future GHG cases. This is good news as rounds three and four (i.e., North Carolina and Kivalina) make their way up the judicial ladder.

AEP v. Connecticut was a close case, Judge Hall noted—and one that's far from over, just as the issue of GHG abatement is far from over. The plaintiffs have the opportunity to argue the case under state common law on remand. They may not, however, as some form of that issue is being addressed in North Carolina. Indeed, as more of these cases reach the Supreme Court, we will obtain a better understanding of the exact limits of displacement.

I conclude with the words that Professor Echeverria used to open the panel as they seem particularly applicable. Quoting Justice Robert Jackson: "[w]e are not unaware that we are not final because we are infallible; we know that we are infallible only because we are final." Indeed, even as decisions become "final," the law shifts with our culture and collective experiences, and some show themselves to be blatantly wrong (i.e. Dred Scott). As impressed as we may have been with round one, and as underwhelmed as we may be by the court's apparent backpedaling in round two, we can only hope for better resolution in rounds three, four and beyond.

NPR's Richard Harris: On the Frontlines of Gulf Oil Spill, Japan's Nuclear Crisis

Vermont Law School — 14 Jul 2011 04:00:00 EST

Of the many news scenes where NPR science correspondent Richard Harris has reported from around the world for three decades, few were as prominent as the Gulf of Mexico oil spill in April 2010 and Japan's nuclear crisis this year.

Harris, a VLS summer media fellow, compared how the two disasters were handled by the U.S. and Japanese governments, respectively, and the news media in a Hot Topics lecture July 14 at Vermont Law School.

He described the uncertainty in the early days of the BP Deepwater Horizon spill, where Coast Guard Admiral Thad Allen, the national incident commander, minimized the severity of the accident -- so much so that Harris worked on other stories for a few days until the extent of the disaster became more clear.

Harris said Allen wasn't qualified to be the government's point person because he wasn't knowledgeable about deepwater oil drilling technology. "None of us were," Harris said, adding that the media and public didn't understand the risks of drilling at such depths.

Harris described how he broke the news that the blown-out well was spewing far more oil than asserted in official estimates. He tracked down independent scientists who analyzed the oil's flow rate from satellite images and videotape of the leaking well. The scientists estimated 50,000 to 100,000 of barrels of oil a day were spewing out rather than the 5,000 barrels estimated by BP and the government. The White House didn't like the story but soon acknowledged the severity of the accident and brought in more oil containment vessels and equipment.

Just before the Gulf oil spill's one-year anniversary, Harris received a phone call from his managing editor at 2:15 a.m. on March 11, saying an earthquake had struck off the coast of Japan and generated a tsunami that caused widespread death and destruction on the nation's northeast coast.

Harris flew to Japan the next day and found a situation similar to the Gulf oil spill -- government and company officials who were unable or unwilling to provide accurate information as the disaster unfolded. He said the Japanese government, nuclear plant officials, utility regulators and local media provided scant information about the disaster. Officials gave out precise technical information but no context, so the radiation threat wasn't immediately clear and the Japanese public soon became frustrated and distrustful of the government, he said.

Prof. Cheryl Hanna: Vermont Likely To Foot Legal Bill in Vermont Yankee Lawsuit

Vermont Law School — 08 Jul 2011 04:00:00 EST

In her latest addition to Vermont Law School's faculty commentary blog on the lawsuit over the controversial Vermont Yankee nuclear plant, Professor Cheryl Hanna wrote:

"When Act 47 was being debated, I was concerned that the Vermont Legislature might be over-reaching by suggesting that Entergy had to bear the entire cost of litigation. So. I looked at the legislative record, did some research and chatted with my colleagues. It is my humble yet considered judgment that not only is the law unenforceable, but it is also likely unconstitutional.

"So, it is my prediction that if Vermont ever tries to enforce Act 74, even if it prevails in its lawsuit with Entergy, it is Vermont's taxpayers, not the Louisiana corporation's shareholders, who will ultimately foot the bill."

Read the entire commentary.

Prof. Don Kreis: "Belly Buttons and Blarney" in Vermont Yankee Lawsuit Hearing

Vermont Law School — 24 Jun 2011 04:00:00 EST

In his latest addition to Vermont Law School's faculty commentary blog on the federal lawsuit over the Vermont Yankee nuclear plant, Assistant Professor Don Kreis wrote:

"John Herron, CEO of Entergy's nuclear operations, seems affable enough. He drew a laugh in U.S. District Court in Brattleboro on Thursday when he referred to a 'belly button count' as a folksy synonym for the number of people working at his company's Vermont Yankee nuclear power plant.

But there was nothing affable about the implied threat that Herron delivered a few minutes later in the courtroom of Judge Garvan Murtha..."

Vermonters Must Work Together to Revitalize Brownfields, Markowitz Says

Vermont Law School — 23 Jun 2011 04:00:00 EST

Vermont's government, businesses and local communities must work together to redevelop the state's many brownfields, Vermont Secretary of Natural Resources Deb Markowitz told a Vermont Law School conference on June 23.

Markowitz addressed the "Brown to Green 2011" conference, which was intended to give developers and their professional advisors the tools for identifying, transacting and redeveloping brownfields in Vermont.

Brownfields are vacant, abandoned or substantially underused industrial sites in need of clean up from contamination.

"We're not going to accomplish this by government alone," Markowitz said. "Each of us (in the public and private sectors) needs to take responsibility. Individual contributions can make a great difference if we work together."

The secretary urged developers to first look at redeveloping brownfields, which are often located in urban areas, before turning to open green space beyond city centers.

She said the key is helping developers, real estate agents, bankers, insurers, lawyers and others to become more sophisticated in how to revitalize brownfields and for Vermont to adopt a better economic and legal infrastructure to assist them.

"Early involvement by the ANR is the key to your success," she said. "We want to be pro-active."

Markowitz said the ANR's goal is to redevelop three to five brownfields each year that are complex, high profile and crucial for local communities. Such cases will serve as models of success for further projects, she said.

Panelists included private practitioners, law school professors, government attorneys and program personnel from federal, state and regional brownfields programs. Conference sessions guided participants through the transactions and site preparation process. Emphasis was placed on the state and federal regulatory framework, practical risk management vehicles, environmental investigation, and utilization of financial and technical assistance programs.

The event was sponsored by VLS's Land Use Institute, the Vermont Agency of Natural Resources, Vermont Department of Environmental Conservation and Vermont Bar Association.

U.S. Supreme Court Strikes Down Another Vermont Law On First Amendment Grounds

Vermont Law School — 23 Jun 2011 04:00:00 EST

Vermont Law School professors Cheryl Hanna and Pamela Vesilind offer the following analysis of today's U.S. Supreme Court ruling in Sorrell v. IMS Health Inc., Vermont's physician data mining law.

Professor Cheryl Hanna

Anna Nicole Smith seems to be haunting Vermont Attorney General Bill Sorrell.

Today, the U.S. Supreme Court issued its opinion in Sorrell v. IMS Health, striking down Vermont's prescription confidentiality law as a violation of the First Amendment. The Court also issued its opinion in Stern v. Marshall, holding that the estate of the late Anna Nicole Smith does not get $88 million from her now deceased husband's estate. Back in 2006, when the Court heard arguments in Randall v. Sorrell, the case striking down Vermont's campaign finance law, the Court also heard an earlier version of Smith's financial battle. The troubled celebrity model was in the audience that day and no one paid much attention to Sorrell.

But today's Sorrell opinion should warrant great attention as its implications for the First Amendment and corporate speech could be sweeping. The Court, in a 6 -3 opinion by Justice Kennedy, held that Vermont's law, which restricted pharmaceutical companies from purchasing information about doctor prescription patterns, a practice called "detailing," violated the First Amendment. In a strongly worded opinion, the Court criticized both Vermont's Attorney General for changing his position on the scope of the statute during the course of the litigation, and the Vermont Legislature for passing such a broad prohibition on speech. The law, the Court said, lacked coherence and careful crafting. The tone of the opinion suggests the state was unsophisticated and inattentive to the demands of the Constitution in both its drafting and its interpretation and intent of its own law.

Pamela Vesilind

But the Court's decision doesn't just strike down Vermont's law. Rather, because the law itself so blatantly targeted pharmaceutical companies while allowing just about anyone else to access physician data, it gave the Court an opportunity to expand the rights of companies to engage in targeted marketing, particularly when medicine and public health are at issue. When Vermont restricted the use of "detailing," it was essentially restricting speech by industry it didn't like. The consequence of that, the Court held, is to withhold otherwise true and accurate information from consumers. If state tries to do so, it must have, in plain English, a really, really good reason. But Vermont couldn't come up with a really, really good reason. The law didn't protect physician privacy, it didn't lower the cost of medical services and it didn't promote public health.

What the law did, the Court said, was suppress speech that was "too persuasive" and contrary to the state's own policy goals of promoting generic drug use. In essence, the Court said Vermont had engaged in censorship for political reasons. The state may not like pharmaceutical companies, but it doesn't have the right to keep them quiet.

The dissent, authored by Justice Breyer, is primarily concerned that the Court's decision opens the floodgates for private information to be used by private industry to enhance their bottom lines. The decision has two significant implications: First, states will now likely have a much harder time restricting the use of data, which is much more easily garnered in the digital age, for targeted marketing. This leaves little room for states to regulate all sorts of personal information. Second, Vermont's unapologetic targeting of pharmaceutical companies simply did not play well in the Court. This state-versus-industry political dynamic is also at issue in Vermont's dispute with Entergy over the future of the Vermont Yankee nuclear plant. While that case involves different constitutional questions, the Court's ruling today shows it doesn't like Vermont using its regulatory power to "shut down" companies that engage in practices that are contrary to its own political values.

In both the 2006 Randall campaign finance case and today's Sorrell decision, Vermont compromised constitutional precision in favor of political popularity, positioning the state as David and financially powerful voices as Goliath. In both cases, the Court saw it the other way around. That doesn't bode well for Vermont if, as expected, the Vermont Yankee legal dispute ends up before the Supreme Court. If it does, not even another Anna Nicole Smith case will likely distract the justices from their concern over Vermont's 0-2 record on these key constitutional matters.

Read Hanna's earlier analysis of Sorrell v. IMS Health Inc., which was argued before the U.S. Supreme Court on April 26, 2011.

"Story of Stuff" Author Annie Leonard Receives Honorary Degree

Vermont Law School — 06 Jun 2011 04:00:00 EST

Annie Leonard, the author of "The Story of Stuff," received an honorary degree at Vermont Law School's 36th commencement on May 21 in recognition of her nearly two decades investigating and organizing on environmental health and justice issues. Leonard discussed her work in a guest lecture the day before commencement. View the lecture.

Oceans Expert Calls for Ban on Shark Finning

Vermont Law School — 03 Jun 2011 04:00:00 EST

Teeth, yes. Charisma, no.

A magnetic personality probably isn't the first thing that comes to mind when you think of sharks, especially the great white shark, but the oceans' top predators have long held a morbid curiosity for humans.

And it's that public fascination that conservationists are using to try to stop shark finning, the brutal practice of cutting off their fins to make shark fin soup, an oceans expert told a Vermont Law School audience on June 2.

Michael Sutton, director of the Monterey Bay Aquarium's Center for the Future of the Oceans, kicked off the VLS Environmental Law Center's 2011 Hot Topics summer lecture series by discussing California's campaign to ban shark finning. A new California bill would outlaw the purchase, sale, trade or possession of shark fins. Hawaii has passed such a law. Oregon and Washington state are considering similar legislation.

"The goal is to put shark fin soup out of business in California," Sutton said.

Shark finning kills an estimated 73 million sharks a year, contributing to a significant decline in shark populations worldwide, Sutton said. The practice involves hacking off a live shark's fins, then leaving it to die slowly as it sinks to the bottom of the sea.

Shark fin soup is a traditional Chinese delicacy, a symbol of wealth and power, but surveys show that a vast majority of Californians, including Chinese-American residents, oppose shark finning, Sutton said. He predicted the California bill, which passed the state Assembly last week, will receive state Senate approval and the governor's signature by year's end.

Sharks are a "charismatic mega-fauna," a term that conservationists use for large animals that fascinate the public, such as bears, lions and tigers. In the case of sharks, humans have a love-hate relationship with these ichthyological wonders of the oceans, which cover 70 percent of the world's surface and 90 percent of the global biosphere, Sutton said.

The world has three primary shark populations - off California, South Africa and Australia - and Monterey Bay Aquarium scientists are learning more about the species' life history, movements and habits from satellite tagging technology. Like many other large animals, sharks live long lives, reproduce slowly, bear live young and can't stand intensive fishing, hunting or habitat degradation, Sutton said.

Shark finning is illegal in U.S. waters, but no laws prohibit it on the high seas, which are beyond any nation's territorial waters. Sutton said history has shown that killing off apex predators -- grizzly bears, sharks, alligators and other creatures at the top of their respective food chains -- damages any ecosystem.

He said the campaign to stop shark finning is taking hold in China and among Chinese-Americans in California, where a growing number of young couples' wedding announcements carry the caveat: No shark fin soup will be served.

Democracy Now! Host Urges VLS Grads to be "Sword or Shield"

Vermont Law School — 25 May 2011 04:00:00 EST

Amy Goodman, host and executive producer of Democracy Now!, urged Vermont Law School graduates at the school's 36th commencement on May 21 to join the forces fighting for truth, justice and openness.

"You have to decide whether you are going to represent the sword or the shield," she said.

Goodman, who received an honorary degree, spoke of VLS's history of preparing students to be successful litigators, public interest attorneys, environmental and land use experts, civil rights advocates and activists in a range of fields, including climate change.

She also spoke of Vermont's leading role among U.S. states in promoting equality and protecting its citizens and the environment -- the Green Mountain state was the first state to abolish slavery in its Constitution; the first state to approve gay civil unions and same-sex marriage through legislative action instead of a court ruling; and the first state to require its approval for nuclear power plants within its borders.

Goodman, whose independent journalism is considered a counterpoint to corporate media consolidation, recalled her experiences covering the 1991 massacre of protesters in East Timor and the 2008 crackdown on protesters at the Republican National Convention in St. Paul, Minn. She said both instances were examples of government, military and police abuse of people gathered peacefully to seek truth, openness and justice.

Watch Goodman's commencement address.

Society of American Law Teachers Opposes Efforts to Derail Repeal of "Don't Ask, Don't Tell" Law

Vermont Law School — 13 May 2011 04:00:00 EST

Vermont Law School Professor Jackie Gardina wrote the following statement from the Society of American Law Teachers (SALT) on May 12 in response to the House Armed Services Committee's amendment that would make the repeal of the "don't ask, don't tell" law more difficult. Gardina is a member of SALT's board of governors.

SALT condemns recent efforts by House Republicans to derail, delay, and defund the repeal of Don't Ask Don't Tell. These efforts are a potent reminder that the fight to end Don't Ask Don't Tell is not over. As academic institutions prepare to allow the military back on campus, they must remain vigilant and continue to fight efforts to undermine repeal of the only federal law that affirmatively discriminates based on sexual orientation.

On May 11, 2011, the House Armed Services Committee adopted an amendment to the National Defense Authorization Act of 2012 that would make the repeal process more difficult. Representative Duncan Hunter offered the amendment which reflects the language of his "Restore Military Readiness Act of 2011" bill (H.R. 337). It requires that each branch service chief certify that repeal of Don't Ask Don't Tell "will not degrade the readiness, effectiveness, cohesion, and morale of combat arms units and personnel of the Armed Force under the officer's jurisdiction." Representative Hunter's efforts are a thinly veiled attempt to delay repeal.

Unfortunately, Representative Hunter is not alone in his desire to maintain the status quo. Representative Buck McKeon, Chairman of the House Armed Services Committee, has publicly stated he wants to "repeal the repeal." Chairman McKeon has held two hearings on repeal implementation, inviting witnesses to testify about its perceived detrimental effect on military effectiveness. At least four expected candidates for President in 2012 have voiced their opposition to repeal and some have gone as far as to say that if elected, they would ensure that Don't Ask Don't Tell remains the law.

These actions and statements send a clear message that proponents of repeal must remain vigilant. "The Don't Ask Don't Tell Repeal Act of 2010" neither repealed 10 U.S.C. § 654 nor prohibited discrimination based on sexual orientation in the armed forces. Instead the Act provides for repeal of Don't Ask Don't Tell only after statutorily prescribed actions occur. The statute does not set forth a time frame for the certification process and explicitly states that Don't Ask Don't Tell remains in effect until the requirements are met. As a result, the Ninth Circuit Court of Appeals refused the Department of Justice's request to suspend the appeal in Log Cabin Republicans v. Gates.

As a result, law schools are still bound by the Association of American Law Schools' (AALS) amelioration requirements to post a notice to the general law school community that military practices remain inconsistent with the school's nondiscrimination policy under AALS Bylaw 6‐4(b) and to take other steps to ensure a welcoming and inclusive environment for gay and lesbian students. Until 10 U.S.C. § 654 is repealed and the armed forces are prohibited from discriminating based on sexual orientation, there is no guarantee that gay and lesbian students will truly enjoy equal employment opportunity.

U.S. Supreme Court Skeptical About Vermont's Physician Data Mining Law

Vermont Law School — 27 Apr 2011 04:00:00 EST

Vermont Law School Professor Cheryl Hanna, a Constitutional law expert, offers a post-argument analysis of Sorrell v. IMS Health Inc., which was argued before the U.S. Supreme Court on April 26, 2011. Hanna attended the arguments with several students from her Constitutional law class.

A lawyer is only as good as the law that the Legislature hands her, and it was clear after yesterday's U.S. Supreme Court argument in Sorrell v. IMS Health Inc. that Vermont Assistant Attorney General Bridget Asay had a not-so-good law to defend. The state is fortunate to have an assistant attorney general as skilled as Asay. But nothing she could have said or done would likely have saved Vermont's physician data mining law from a near certain death.

At issue was whether a Vermont law that seeks to ban the sale of physician prescription data to drug companies—which use the information to target their marketing to individual doctors in a practice called "detailing"—violates the First Amendment.

Asay was barely a few minutes into her argument when Chief Justice John Roberts challenged the state's motives in passing the law; he later accused Vermont of censorship of commercial speech. His skepticism was followed by Justice Antonin Scalia's downright hostility. He insisted the law was intended to impede drug companies from providing information to doctors, not protecting doctors who could simply refuse to see pharmaceutical representatives.

VLS Constitutional Law students and Vermont Attorney General William Sorrell at the U.S. Supreme Court

Justice Kennedy, often the swing vote in close cases, then accused the state of regulating the use of speech. He asked whether the law would allow the sale of the data for research purposes. Justice Ruth Bader Ginsburg at first seemed open to the state's ability regulate the sale of the information if that was the only commercial use of the data, but she was then frustrated when it appeared that other commercial sales would be permitted.

Even Justice Sonia Sotomayor, who was more sympathetic to Vermont's position that doctors should have some control over the dissemination of their prescription drug patterns, was troubled by the law's provision that allowed doctors to opt-in to the sale of their records. She instead suggested a scheme that mirrored the Do Not Call policy, which allows consumers to opt-out of telemarketing calls, would be more in line with the First Amendment.

Justice Samuel Alito then suggested the Vermont law may have misled the lower court on what transactions could be regulated by the statute. This clearly signaled skepticism not only about the law itself but with the state's representation of what exactly the statute regulated.

The U.S. government, through the Office of the Solicitor General, weighed in on the case in favor of Vermont. Yet Deputy Solicitor General Edwin S. Kneedler had no better luck than Asay in convincing the Court that all the law did was level the playing field between pharmacies and physicians, and that the state was within its power to restrict this information given that prescription drugs are a highly regulated industry.

Thomas Goldstein, a highly regarded attorney who is a frequent advocate before the Court, represented the data mining and drug companies. Goldstein seemed to command the Court, more like a professor steering his students than a lawyer pandering to the justices. He opened by having the justices turn to the red brief, which contained the statute. (All briefs before the Court are color-coded to identify the parties.) Even Justice Clarence Thomas, who often merely sits back and listens to the arguments, followed Goldstein's command, perking up, opening the brief and privately bantering with Justice Stephen Breyer over the law's language. Goldstein had to be content with the predictable "what-if" hypothetical questions posed by Justice Breyer. To Goldstein's credit, his argument was not radical, but he urged the justices to seek some balance between free speech and state regulation. The justices took seriously Goldstein's contention that the law, as written, did not protect doctor privacy, but rather discriminated against the speech of clients who were providing FDA-approved true and accurate information about their drugs to physicians.

Perhaps the most compelling part of his argument was when he directed the Court to read the finding made by the Vermont legislature when passing the law. "My favorite," Goldstein quipped, was the finding that Vermont intended to impact the "marketplace of ideas" because drug companies had more money. (How such a finding ever made it into any legislative record baffles the mind of this Constitutional law professor.) This, Goldstein insisted, the state can not do under the First Amendment.

While it's risky to make conclusive predictions based on oral argument, it is likely that a majority of the Court will vote to strike down Vermont's law. Less clear is whether the holding will be narrow, focusing only on the defects of the Vermont statute or whether the Court will announce a more sweeping decision that could hinder the states from regulating data mining when it truly implicates consumer privacy. Clearly, some justices, including Sotomayor, Breyer and Ginsburg, seemed to appreciate that restricting the use of private, personal information might be appropriate, but disagreement among the justices over whether to draw that line might likely produce a fractured decision.

While the Court could leave room for the Legislature to go back and draw a more narrowly tailored statute that does not impinge upon the free speech rights of corporations, it can't save it from having to pay for its mistakes. If the state loses this case, it is on the hook for attorney's fees paid by the data mining and pharmaceutical companies who brought the case. When the state violates a constitutional right of a litigant, even if that litigant is a corporation, the state has to pay the costs that litigant incurred defending its rights. Given the number of attorneys involved in the case, the extremely high caliber of both local and national counsel and the hours involved in preparing a case for the Supreme Court, a loss will likely cost Vermont taxpayers more than $1 million. But that is the price Vermonters have to pay when the legislature goes out on a limb and passes a law that is intended to be progressive but crosses a constitutional line.

A decision on the merits of this case is expected by the end of June.

Read a transcript of the argument.

When Taxes Are Good for Us

Vermont Law School — 19 Apr 2011 04:00:00 EST

The following op-ed by Vermont Law School Professor Oliver Goodenough appeared in The Huffington Post on April 15, 2011:

The government's near miss with a shutdown last week and the follow-up speech by President Obama are the latest episodes in our public conversation about the proper role of government and taxes. As currently framed, this conversation is badly, and improperly, skewed towards the negative. It has somehow become an unspoken "given" that taxes are always bad for you. Government, as the source of taxes, is therefore a bad thing as well.

Liberals at least assume that they are necessary evils -- but still avoid using the "t" word whenever possible. Our most libertarian conservatives seem to think that we could do very well without government and taxes at all. Their position is often: "we always have something better we can do with our own money, thank you." Both the strong and weak anti-tax positions are mistakes when taken to this extreme. There are many instances where paying taxes to an active government is positively good for us. Yes, good for us. And with the threat of a shutdown behind us and our extended April 18 tax day in front of us, it is a good time for us to make that truth a part of the conversation once again.

It has long been understood by economists that there are goods and services that can be most effectively paid for through some kind of pooled -- and compulsory -- mechanism. We typically call these items "public goods" and the mechanism "government" and "taxes". The "free rider" problem makes collective defense a particularly good candidate for the government and tax model of finance.

Fighting off external enemies and keeping our domestic criminals at bay benefits everyone in society. A voluntary model of paying for an army or the police will unravel as people realize that they will get the benefits of protection whether or not they contribute to the cost. Contributions quickly dry up as those who would otherwise be willing to do their part feel like chumps as they watch their friends and neighbors staying safe while skipping the bill. The only assured way to buy an army is for the members of the group to band together and to make mutually enforceable commitments to contribute to the cost. Sound familiar? Of course, these are government and taxes, at your service.

Taxes, in this case, are not an evil, not a drag on society, but are instead a wonderful purchasing opportunity, providing the most practical way to buy extremely desirable goods: peace and security. While there is always room for improvement in how these are delivered, here in the United States, we should all give thanks for having the chance to buy these essentials through a relatively competent system of Federal, State, and local governments. If you need encouragement to be thankful, consider the fate of people in parts of the world where governments do this badly, or where there is no effective government at all. Want to avoid taxes completely? Willing to live in Somalia? I don't think so.

So, let's stop pretending that taxation and government are necessarily bad things. They can be, of course, when they outrun the desires of a citizenry or unnecessarily constrain growth. But as a country becomes more prosperous, and is able to move its goals for consumption beyond short-term, survival-based concerns, public goods often make up a significant proportion of what people decide they want to devote a portion of their rising income to purchasing. In terms of individual citizen satisfaction, we can just as easily miss the mark by under-consuming public goods as by over-consuming them. Sweden devotes a high level of its income to purchases in the public basket, and it generally ranks higher than the US in "happiness surveys" and in health outcomes. And its system still produces sound economic growth. The Swedish choices probably don't fully fit American values and expectations, but their apparent success ought at least to make us ask some wider questions.

Instead of basing our strategy on cutting alone, we should figure out -- and then implement -- better answers to some key questions about how and when we put taxation and government to work on the mix of goods and services that we Americans want. A grown-up conversation should ask:

•Which goods and services would we like, as a society, to buy through a mandatory public buying club, and which ones do we want to buy as individuals? Where do "entitlement" items like old-age protections and health care fall in this mix?

•How many of these desirable items do we want to afford, and at what level, particularly in balance with our desires to reserve the proper amount for our purchase of private goods?

•How do we want to apportion our assessment for these purchases among society's members (i.e. who gets taxed, on what, and at what rates)?

•Which items on the collective purchase list should be supplied through government, and which should just be paid for through government?

Asking these questions is certainly easier than solving them, but as the saying goes, a problem well stated is a problem half solved. The dominant role that cuts in services and taxes have in our current rhetoric states only a part of the problem. As we face the challenge of resolving our debates over government size, scope, and finance, an honest dialog, which appreciates the benefits of taxation as well as its burdens, will lead us to better solutions -- ones that might even include extending our pool of government purchase responsibilities. And, if that is what we really want, then the taxes that go with them will be an opportunity, and not a burden.

Anatomy of Social Change: Repealing "Don't Ask, Don't Tell"

Vermont Law School — 13 Apr 2011 04:00:00 EST

The following op-ed by Vermont Law School Professor Jackie Gardina appeared in vtdigger.org on May 5, 2011:

In December, Congress approved and President Obama signed into law the "Don't Ask Don't Tell Repeal Act of 2010." The Act defines the process for finally removing from the United States Code the only federal law that affirmatively discriminates based on sexual orientation. It was an historic moment, made even more so by the fact that just weeks earlier repeal had been declared dead. Through my work with Servicemembers Legal Defense Network (SLDN), I, along with many others in the Vermont Law School community, participated in repeal efforts and witnessed the amazing events that led to repeal.

Before I served on the SLDN Board, I never truly appreciated what was required to create social change. I had listened to debates about strategy in social movements. In any movement, activists disagree on how to achieve a common goal. Is it best to pursue the movement's goals through impact litigation or through the legislative process, albeit at a slower pace? Is it better to accept incremental change or to hold out for the movement's full goals? Is it better to operate within the system, playing by well-established rules, or to achieve change through acts of civil disobedience and protest? When it came to the repeal of the "don't ask, don't tell" law, I discovered that the answer to each of these questions was "yes."

The repeal movement encompassed a broad range of strategies, each instrumental in the outcome. The success of the legislative strategy is the most obvious. Proponents of repeal were persistent in their efforts to remove "don't ask, don't tell" from the books. For six years, groups of 20 to 40 VLS students, faculty and staff travelled to Washington, D.C., to participate in a national lobby day. We joined hundreds of veterans and civilians and visited every office on Capitol Hill, speaking about the necessity of repeal with legislative aides, military liaisons and sometimes senators and representatives themselves.

But the legislative efforts did not occur in a vacuum. The foundation of the eventual legislative success was laid through the courts, through the push for incremental adjustments to implementation, and though civil disobedience and the media attention it brought to the issue.

The effect Judge Phillip's decision in Log Cabin Republicans v. Gates cannot be overestimated. In 2004, a year before the first bill to repeal "don't ask, don't tell" was introduced into Congress, the Log Cabin Republicans filed a suit in a California federal district court arguing that the law was unconstitutional on its face. Through a series of delays, including the retirement of the original judge assigned to the case, Judge Virginia Phillips did not declare "don't ask, don't tell" unconstitutional until the fall 2010. The six-year delay was fortuitous because it allowed Judge Phillips to rely on a 2008 Ninth Circuit case, Witt v. Air Force, that applied a heightened level of scrutiny to another "don't ask, don't tell" challenge. While the ruling was momentous, the remedy was even more so. She issued a world-wide moratorium on the implementation of "don't ask, don't tell" that lasted for eight days. While the moratorium was lifted by the Ninth Circuit, Secretary of Defense Robert Gates used the specter of court-ordered repeal of the law to spur Congress into action.

Proponents of repeal were also working behind the scenes to effect change through regulatory amendments. On behalf of SLDN, Dustin Brucher, who graduated from VLS in 2010, and I examined the scope of executive power and combed through the Department of Defense's implementing regulations to identify possible amendments that would at least soften the impact of "don't ask, don't tell." Based on our efforts, SLDN submitted a "Transition Paper" to President Obama after the election. In February 2010, Secretary Gates introduced new regulations intended to implement the law "more humanely." The changes closely tracked our recommendations. While short of repeal, the changes made it more difficult for the armed forces to investigate and discharge a gay or lesbian service member. They also allowed the Department of Defense to begin the slow transition to full repeal.

When it appeared that repeal efforts were moving too slowly or stalled, some service members decided to work outside the system. Five veterans and former service members chained themselves to the White House fence, some of them in uniform. When President Obama spoke, GetEqual, an LGBT rights organization, sent protesters to ask - sometimes shouting over the President's speech - when repeal was going to occur. While not everyone involved in repeal efforts agreed with their activities (I know several veterans who were troubled that the service members wore their uniforms when protesting), the media covered the events and "don't ask, don't tell" remained in the news.

The last chapter of this story hasn't been written yet. The "Don't Ask Don't Tell Repeal Act of 2010" did not actually repeal the law; it simply provided a process for doing so. As a result, the Ninth Circuit refused the government's request to dismiss the pending appeal in Log Cabin Republicans v. Gates as moot. Nonetheless, we appear on the brink of ending this discriminatory practice. Would we be here if there hadn't been litigants willing to bring challenges to the law in the courts; if there hadn't been efforts to push for incremental change; if there hadn't been consistent pressure placed on Congress; if there hadn't been vocal activist willing to work outside the system? I doubt it. Social change requires multi-dimensional strategies, good timing, and quite, honestly, a little luck.

Jackie Gardina is a professor at Vermont Law School, where her specialties include sexual orientation and gender identity issues. VLS is one of two law schools in the nation that deny campus access to military recruiters because the "don't ask, don't tell" law conflicts with their non-discrimination policies. VLS plans to notify the Department of Defense that military recruiters are welcome back on campus once the law's repeal is finalized.

Quest for Rule of Law Motivates Arab Uprisings, Says Former New York Times Bureau Chief

Vermont Law School — 07 Apr 2011 04:00:00 EST

The uprisings across North Africa and the Middle East have put many autocratic Arab governments in the unusual position of fearing their people rather than instilling fear in them, a former New York Times foreign bureau chief told a Vermont Law School audience on April 6.

Protest movements in Egypt, Libya, Tunisia, Syria, Yemen, Bahrain, Tunisia and other Arab nations "have opened a Pandora's box of dreams" for millions of people fed up with government oppression, said Christopher Wren, who reported from around the world for nearly 30 years for the Times. "They may be sleeping in different beds, but they're dreaming the same dreams."

Wren, whose talk was titled "Rule of Law and the Arab Revolt: A Journalist's Perspective" said those dreams are based on a desire for dignity, jobs, democratic reform and an end to corruption. "These spontaneous uprisings have been prompted by popular demands for free elections, fair employment, term limits for rulers, the dismantling of institutional corruption and the ousting of brutal officials," he said. "Such reforms would hardly ruffle the West, but they are toppling Arab regimes and recasting the face of the Middle East and North Africa."

Wren was the Times' bureau chief in Cairo from 1977 to 1980. He also headed the Times' bureaus in Moscow, Beijing, Ottawa and Johannesburg and later covered the United Nations. He reported from throughout the former Soviet Union, Eastern Europe, the Balkans, the Middle East, China, Africa, South America and Canada.

Wren, who last visited Egypt six months ago, cited technology's role in the Arab uprisings. He said the Al-Jezeera TV network's reporting and protestors' Twitter and Facebook postings and cell phone videos gave instant communication for the world to witness.

How the uprisings will play out remains uncertain, but Wren said Arab youth, who make up a growing percentage of the population in the Middle East and North Africa, likely will no longer accept authoritarian rule. "They are motivated neither by Islamist or Marxist ideologies, but by aspiration for the rule of law they see in the West," he said "Yet the triumph of rule of law is far from assured."

Wren is on the advisory board of VLS's International and Comparative Law Programs and his son, Christopher Wren '99, is a litigator in New York.

Ocean Conference Explores Multiple Uses of Marine Resources

Vermont Law School — 01 Apr 2011 04:00:00 EST

Once considered limitless-by ancient mariners and modern industrialists alike-the oceans' natural resources face growing pressures that can only be reconciled by a comprehensive use plan that balances conservation, energy development, fishing and other demands.

That was the word at an April 1 conference at Vermont Law School titled "Coastal and Marine Spatial Planning: The Intersection between Energy, CMSP, and Our Future Needs." Attendees spent the day discussing ways to strengthen international ocean regulations and protect marine ecosystems, while exploring offshore energy resources.

The conference was part of VLS's growing commitment to students and faculty who are interested in marine law, policy and stewardship. In his opening remarks, Professor Kinvin Wroth, whose specialties include marine environmental law, praised the VLS students who organized the conference, which drew leading ocean experts from across the nation. "Today's conference is an auspicious start to what I hope is an ambitious" expansion of ocean law course offerings and other initiatives at VLS, he said.

In 2010, President Obama established America's first National Policy for the Stewardship of the Ocean, Our Coasts, and Great Lakes. One of the priorities of the Interagency Ocean Policy Task Force is creating a coastal and marine spatial plan (CMSP).

The VLS conference's first speaker, Emily Merolli '06 gave an overview of CMSP, which is "a comprehensive, adaptive, integrated, ecosystem-based and transparent spatial planning process, based on sound science, for analyzing current and anticipated uses of ocean, coastal, and Great Lakes areas." Coastal and marine spatial planning identifies areas most suitable for various types or classes of activities in order to reduce conflicts among uses, reduce environmental impacts, facilitate compatible uses and preserve critical ecosystem services to meet economic, environmental, security and social objectives.

The oceans' competing-and often conflicting-uses include species and ecosystem protection, commercial and recreational fishing, tourism and other recreation, shipping, fossil fuel and renewable energy development, military training and aquaculture, Merolli said. Many marine uses occur near the coasts, where much of the world's human population and major cities are located, she added.

VLS Associate Professor Betsy Baker discussed the need to adopt CMSP and the Arctic Offshore Oil and Gas Guidelines because of growing pressure for hydrocarbon development in the Arctic. Melting sea ice in the Arctic is opening new areas to drilling, shipping, military operations and other uses in the fragile ecosystem. Baker is an expert in Arctic law and policy and a senior fellow for Oceans and Energy at VLS's Institute for Energy and the Environment.

The conference's first panel focused on offshore energy and how it fits into CMSP, including implications of the BP Deepwater Horizon oil spill in April 2010. The keynote speaker, Meg Caldwell, director of the Environmental and Natural Resources Law & Policy Program at Stanford Law School, discussed CMSP as a tool to minimize human-use conflicts in the ocean and how CMSP will be used to protect our marine resources and coastal communities. The conference's second panel focused on the national framework for coastal and marine spatial planning.

The conference was sponsored by VLS's Ocean and Coastal Law Committee, Environmental Law Society, Environmental Law Center and Office for Student Affairs and Diversity. The conference planning committee included Keisha Sedlacek, Lisa Campion, Shannon Eckmeyer, Megan Fowler, Jaffer Khimani, Sarah Mooney, Brian Navarrete and Emily Rochte.

Vermont Supreme Court Hears Arguments at VLS

Vermont Law School — 23 Mar 2011 04:00:00 EST

At the Vermont Supreme Court's annual session at Vermont Law School on March 23, teams of lawyers argued seven cases involving issues of criminal procedure, evidence, property, torts, environmental law, administrative law and constitutional law.

The Oakes Hall classroom where the justices presided drew a large number of students, faculty and staff. The day's first two cases involved public records requests and law enforcement officials accused of viewing child pornography while on duty.

In the first case, lawyers for the Rutland Herald, town of Rutland and American Federation of State, County and Municipal Employees (AFSCME), Council 93, Local 1201, argued a 2010 case involving three Rutland Police Department employees. They were accused of viewing child pornography while on duty and were disciplined or dismissed following internal investigations.

The Rutland Herald asked the city to release documents related to these employees pursuant to Vermont's Public Records Act. The city argued that some of the requested material was exempt because it related to investigation of a crime and involved personal documents related to the officers' employment. The trial court held that most of the documents had to be disclosed because that exception to the law only applies during an investigation, whereas the records related to the "management and direction of a law enforcement agency." The trial court also concluded the police department's handling of internal investigations was of high public interest and the documents had to be disclosed. On appeal, the city contended the public's interest could be safeguarded by redacting some of the records and that the lower court failed to perform the required balancing test between the public's interest in overseeing government decisions and the right to privacy in one's personal and economic pursuits.

In the day's second case, lawyers for the Rutland Herald, Vermont State Police and Vermont Attorney General's Office argued a similar Public Records Act case. In 2010, the State Police learned one of its employees might possess child pornography. The State Police conducted an investigation, including searching the employee's residence, and the following day the employee committed suicide. The Herald requested disclosure of all documents and records connected to the investigation. The State declined to produce any of these materials. The trial court granted the State's motion for summary judgment, concluding that the exemption for records compiled in a criminal investigation applied to the records in question. The court also found that materials connected to a related inquest were exempt as records designated confidential by law. On appeal, the Herald claimed the records should be made public or the exemptions should be found unconstitutional under the First Amendment and the Vermont Constitution; and that the Court should order disclosure of inquest materials.

China, U.S. Must Cooperate to Reduce Global Warming, VJEL Panelists Say

Vermont Law School — 02 Mar 2011 05:00:00 EST

China and the United States have vastly different legal systems, but the world's two largest emitters of greenhouse gases must work together to strengthen the Asian giant's environmental laws and to bolster each other's investments in renewable energy.

That was the word from the Vermont Journal of Environmental Law's annual symposium on March 2 at Vermont Law School. Titled "China's Environmental Governance: Global Challenges and Comparative Solutions," the symposium hosted scholars from the United States and China for a day of discussion about current and prospective solutions to environmental issues, including climate change and energy needs. VJEL co-hosted the event with VLS's U.S.-China Partnership for Environmental Law.

Assistant Professor Siu Tip Lam, (at far left in photo), director of the U.S.-China Partnership, welcomed panelists and audience members, saying improving China's environmental rule of law would have a major impact on global warming.

In the panel discussion on enforcement remedies, Professor Wang Canfa of the China University of Political Science and Law gave an overview of China's environmental enforcement agencies. Each year, more than 3,300 national, provincial, regional and municipal agencies handle millions of plant inspections and complaints about environmental violations that result in some of the worst polluters being shut down and penalized with millions of dollars in fines, he said.

China's rapid industrialization and urbanization have caused severe environmental degradation, including greenhouse gas emissions that contribute to global warming worldwide and hundreds of thousands of deaths a year in China due to exposure to pollution. The crisis has prompted China's leaders to seek new ways to allow steady growth, while protecting the air, land, water and public health. On Monday, China's environment minister warned that unchecked development is harming the country's air, water, soil and could limit long-term economic growth and feed social instability.

Wang, who is a folk hero in China for his efforts to fight pollution, is director of the Beijing-based Center for Legal Assistance to Pollution Victims. He said pollution remains severe, but that some progress is being made. He cited examples of heavy metal refineries, coal-burning power plants and other polluting facilities being shut down because they were poisoning local children, contaminating rivers and harming food production.

Wang said China must remove bureaucratic hurdles, stiffen punishment, improve the quality and quantity of its enforcement agents and take other steps to improve its environmental legal system.

Jingjing Liu, associate director of the U.S.-China Partnership, discussed China's procuratorate, which prosecutes environmental crimes and pursues civil enforcement actions. The procuratorate, which oversees government prosecutors in China, currently focuses on criminal prosecutions in environmental cases, in part, because it lacks a formal civil judicial enforcement role. China has a large number of environmental laws but inadequate enforcement. "There's a huge gap between laws on the books and enforcement on the ground," she said.

Climate Change Makes Humankind's Survival Uncertain, McKibben Says

Vermont Law School — 18 Feb 2011 05:00:00 EST

Bill McKibben, one of America's foremost environmental advocates, had a mixed message for the standing-room crowd Feb. 17 at the seventh annual Norman Williams Distinguished Lecture in Land Use Planning and the Law at Vermont Law School.

"My job is to be a professional bummer-outer," said McKibben, who detailed the escalating impact of climate change on the planet's ecosystems-from melting glaciers to severe heat waves, flooding, drought and sea level rise. But McKibben also gave the crowd hope, detailing the growth of 350.org, the global grassroots movement he founded to fight global warming.

McKibben's lecture, titled "The Most Important Number in the World," focused on the massive changes being wrought upon the Earth's landscape, water systems and atmosphere by man-made carbon dioxide emissions. Those changes are radically damaging public health, food production, water supplies and humankind's chances of survival, he said.

When he wrote The End of Nature in 1989, McKibben said the harmful effects of burning fossil fuels were well known, "but we didn't know how fast the big trouble would come," he said. "It's coming faster and on a larger scale than we ever thought." 2010 was a dramatic year for climate change, whose influence could be seen in record-setting heat waves, Arctic ice melting, wildfires, floods, rainfall, he said.

Climate scientists and engineers have done their respective jobs by explaining the causes of climate change and offering alternative energy technology, McKibben said. But politicians have failed to create the laws and regulatory framework for cutting greenhouse gas emissions and bolstering clean energy, he said.

He cited the U.S. Senate's failure to adopt climate change legislation in 2010, the election of Republican climate-change deniers to the House of Representatives and the influence of campaign donations and lobbying by oil, gas, coal and other fossil fuel-dependant corporations.

McKibben said he founded 350.org in 2007 when he finally realized that writing and speaking about climate change weren't enough and that mobilizing grassroots pressure on governments was needed. He said he was surprised at how quickly millions of people around the world have come to support 350.org, but that he believes such demonstrations eventually will force government leaders to pay attention.

"The truth is we're losing," he said. "It's not enough to keep raising consciousness. We need to change the political system. The reason we're losing is there's too much power" on the side of the fossil fuel industry, their political supporters and the U.S. Chamber of Commerce.

"A betting man would say the odds are against us, but the price of being a morally awake person is knowing you have to do whatever you can to change those odds," he said. "I don't know if we'll win, but there are lots of people who will fight until the very last minute."

Gov. Shumlin Taps VLS for Another Top Government Post

Vermont Law School — 16 Feb 2011 05:00:00 EST

For the third time since taking office, Vermont Gov. Peter Shumlin has appointed a Vermont Law School faculty or staff member to a top post in his administration. Ron Shems '85, consulting and supervising attorney for the VLS Land Use Clinic, was named Monday as chairman of the Vermont Natural Resources Board. Shumlin also recently appointed David Mears '91, who was director of VLS's Environmental and Natural Resources Law Clinic, as commissioner of the Vermont Department of Environmental Conservation, and Patrick Berry, who was VLS's director of Governmental Affairs and Environmental Advancement, as commissioner of Vermont's Fish & Wildlife Department. Read more about Shem's appointment.

Capital Punishment Violates Human Rights, Panelists Say

Vermont Law School — 11 Feb 2011 05:00:00 EST

James Martin Harlow was shackled when he entered court, but at 6 feet, 5 inches and 300 pounds of muscle, he made the many officers in the courtroom tense.

Convicted of murder twice, attempted murder, kidnapping and rape, Harlow had been sentenced to die nearly a decade earlier for the killing of a correctional officer during an escape attempt. A prosecutor called him a "rabid dog" who deserved to be put down.

But by the end of the hearing, most people in the courtroom saw Harlow in a different light—the bailiffs and deputies were visibly more relaxed and one even nodded off. The court reporter put her hand on his shoulder and asked if he wanted a glass of water.

What made the difference? A 20-minute video of Harlow's fellow inmates describing how he had become a better person behind bars and a recounting of a childhood in which his mother whipped him with barbed wire, according to capital defense lawyer Sean O'Brien.

"You can never lose sight of the humanity of the accused," O'Brien said. "It's all about the human condition. You have to convince the judge and jury of his humanity and being a life worth saving."

O'Brien recounted the story Friday at the Vermont Law Review's 11th annual symposium, titled "New Perspectives on Capital Punishment." Panelists, including VLS Assistant Professor Michele Martinez Campbell (pictured above), a former federal prosecutor whose specialties include criminal law and the death penalty, explored current issues in capital punishment and the human rights implications from the perspective of scholars, litigators and educators.

Topics discussed include applied theory, litigation strategies, international, erroneous convictions, racial bias, public opinion and medical issues. The Law Review also honored the work of the late Michael Mello, a former VLS faculty member and champion of human rights.

Panelists described capital punishment as unfair, inhumane and unconstitutional. Fordham Law Professor Deborah Denno focused on litigation strategies and lethal injection, the most common method of execution in the United States. She reviewed the history of legal challenges to lethal injection, shortages of the drugs used, botched executions, the growing involvement of judges, physicians, the media, public and the Food and Drug Administration in lethal injection.

O'Brien, an associate law professor at the University of Missouri-Kansas City, said the death penalty was "societal violence." Prosecutors and capital punishment advocates try to dehumanize the accused "to the point that it's permissible to kill because they've been relegated to the status of animal," he said. "But litigation is about the intrinsic humanity of our clients. They are unique individuals possessed of fundamental human dignity.

"Being part of a capital defense team is the finest thing you can do as a lawyer," he told the audience. "It's God's work."

What's For Supper? Vermont Law School Explores How the World Eats

Vermont Law School — 27 Jan 2011 05:00:00 EST

What Americans have on their plates these days is increasingly coming from opposite sides of the food spectrum. Over the past decade, production and consumption of both genetically modified food and organic food have risen steadily in the Untied States-as have the complex legal issues surrounding these trends.

The U.S. Supreme Court's first decision on genetically engineered food, which came last year, was the focus of the first panel discussion at Pollinate and Cultivate: Seeding the Future of Our Food, a two-day agriculture law and policy conference Jan. 27-28 at Vermont Law School.

Ten student groups hosted the conference, which explored the ways in which the world eats and ways to improve our systems for growing, transporting and consuming food. The goal was to inspire innovative solutions to the challenges facing our troubled food systems and to examine issues ranging from local food movements to national policy and global impacts.

Professor Pat Parenteau started the conference by discussing biotechnology in agriculture, focusing on last year's Supreme Court ruling in Monsanto v. Geertson Seed Farms, its potential implications for National Environmental Policy Act lawsuits and the farming of genetically modified salmon.

In Monsanto, the Supreme Court overturned a lower court's decision prohibiting Monsanto from selling pesticide-resistant alfalfa seeds until the federal government completes an environmental impact study. In 2006, environmental groups, farmers and consumers sued the U.S. Department of Agriculture, arguing that cross-pollination from genetically modified crops could contaminate conventional alfalfa fields. The groups also argued that overuse of Monsanto's herbicide Roundup, which the seeds were bred to resist, could harm soil and groundwater and promote the further growth of Roundup-resistant weeds.

Ultimately, the Agriculture Department's Animal and Plant Health Inspection Service opted to complete an environmental impact study, and Agriculture Secretary Tom Vilsack on Jan. 27 -- the opening day of the VLS food conference -- authorized the unrestricted commercial cultivation of genetically modified alfalfa. He rejected a proposal to restrict the growing of genetically engineered alfalfa to protect organic farmers from cross-contamination.

Critics of genetically modified crops and salmon have nicknamed them "Frankenfood" in an effort to simplify their threat, but Parenteau said the issue is a "fiendishly complicated" mix of legal, scientific, ethical, environmental, economic, social and public health issues.

"The real issue is whether genetically modified food and organic food can co-exist"" he said. "The USDA thinks so, but other countries, including Korea and Saudi Arabia, have zero tolerance for any trace of genetically engineered foods."

Many U.S. crops already are genetically engineered, including the vast majority of soybeans, cotton, corn and sugar beets, producing a growing amount of profits for the agribusiness industry, Parenteau said. And that has implications for other parts of the food system, including organic dairy farmers who need certified organic alfalfa forage to feed their cattle or they risk losing their organic certification, he said.

Other conference topics included farm and agriculture business incubators; how the 2012 Farm Bill might amend the 2008 Farm Bill to protect ecosystems, family farms and consumers; food's effects on human reproductive health; global animal welfare and industrial agriculture; Native American food systems; water pollution from industrial agriculture; renewable energy source from farm products; and efforts to being together nonprofit groups advocating for migrant farm workers, small family farmers and urban agriculturists.

Williams Lecturer Discusses What's Driving New York City's Unprecedented Rezonings

Vermont Law School

Like much in land use politics, the results of Professor Vicki Been's comprehensive study of New York City's unprecedented rezoning effort were complicated. But one conclusion was clear: Land use decision-making should be more transparent and tied to city- and region-wide consequences.

Been, director of the Furman Center for Real Estate and Urban Policy at the New York University School of Law, discussed her study at Vermont Law School's eighth annual Norman Williams Distinguished Lecture in Land Use Planning and the Law on Feb. 2. Her lecture was titled "Who Controls Land Use Regulation: The Growth Machine Versus Homeowners."

Since 2002, New York City has enacted 101 neighborhood-sized zoning changes throughout the city, which is the first major U.S. city to adopt a comprehensive zoning ordinance. Been explored the city's motivations for making these changes, their implications for the future of the nation's most important urban area and the lessons policymakers and courts can draw from a comprehensive analysis of a city's rezoning decisions.

"Everyone loves to hate zoning," she said, citing such complaints as zoning makes housing unaffordable and that it fosters sprawl, segregation and other social and economic problems.

During her study from 2003 to 2009, she examined New York's zoning maps and texts, and looked at two hypotheses to explain the city's neighborhood-by-neighborhood approach to zoning. In the "growth machine" model, land use officials are part of a powerful pro-growth coalition of government and business elites. In the "homevoter" model, land use decisions are driven by homeowners' desire to protect their property values.

Been looked at New York City's 101 neighborhood rezonings, which covered 811,666 lots in 11,000 blocks, or nearly 25 percent of the entire city. She found that 4.3 percent were "up zonings," which were less restrictive; 4.8 percent were "down zonings," which were more restrictive; and 15.1 percent were "contextual zonings," where what was built depended largely on the existing buildings. The rezonings added 118 million square feet of living space, or 94,000 units, enough for 235,000 people, which won't accommodate the expected population increase of one million in coming years, she said.

Been said her findings show more support for the homevoter model than the growth machine model, but that the "messy results" show the difficulty in articulately what drives land use politics. She said the results show that land use decisions are motivated by complex factors and that broad presumptions should be distrusted.

About the Williams Lecture
Norman Williams came to VLS in 1975 after a distinguished career in public service and teaching, particularly in land use planning. He played a key role in founding VLS's Environmental Law Center. The Norman Williams Distinguished Lecture in Land Use Planning and the Law series is a gift of Frances Yates, trustee of VLS, in memory of Norman Williams and Anya '90 and Charles Yates '90.

VLS Launches its First Online Degree Programs in Environmental Law

Vermont Law School

Vermont Law School will launch the nation's first online master's degree program in environmental law in May 2011. The online format is designed to deliver a robust educational experience that is flexible and accessible for professionals who need to continue working while completing their degree.

After several years of research that included e-learning pilot courses, VLS decided to embrace distance learning, which is the fastest-growing population of graduate students in the United States. Professor Marc Mihaly, director of the VLS Environmental Law Center (ELC), said distance learning provides the best avenue for the nation's top-ranked environmental law school to reach individuals who want expertise and resources in environmental law and policy but who can't venture to South Royalton to take classes or participate in degree programs.

Applications are now being accepted and the inaugural online class will start in May for the Master of Environmental Law and Policy (MELP) program. The program was developed to equip law and non-law students with the expertise to address the world's increasingly complex environmental issues. In addition to the traditional MELP curriculum, the online LLM in Environmental Law is available for post-JD attorneys seeking to specialize in the practice of environmental law.

"By providing a platform for students to explore environmental law and policy with our world-class faculty at their own pace and within their own constraints, we will extend Vermont Law School's unique brand of excellent environmental legal training and commitment to public well-being to a vast array of communities and to the world," Mihaly said.

The ELC has been at the forefront of environmental law and policy since 1978 and has been ranked #1 by U.S. News & World Report 14 times since their rankings began in 1991. Vermont Law School's bold venture will lead nonprofit, mission-driven law schools in the development of the appropriate standards for distance education, said Associate Professor Rebecca Purdom, director of E-Learning and assistant dean for environmental programs. "Other institutions are watching us, looking to our example as the way to offer responsible, effective and valued legal education in the 21st century," she said. "VLS will set the standard for a new kind of distance education."

Learn more about the online master's programs or call directly at 802.831.1247.