Cornell Undergraduate

Law & Society Review

Volume X – Issue I – Fall 2024

Cornell Undergraduate Law & Society Review
Fall 2024 Editorial Board
Jackie Bickford ’26, Co-Editor in Chief
Nicolas Torres ’26, Co-Editor in Chief
Derek Jiang ’25, Managing Editor
Ram Orfanel ’25, Managing Editor
Jaliah Smith ’25, Managing Editor
Pranathi Charasala ’25, Associate Editor
Elizabeth Esterow ’25, Associate Editor
Kevin Kim ’25, Associate Editor
Yuvraj Tuli ’25, Associate Editor
Sam Jacobson ’26, Associate Editor
Chinaza Politis ’26, Associate Editor
Saatvik Amravathi ’26, Associate Editor
Emily Gill ’26, Associate Editor
Hannah Quigley ’26, Associate Editor
Amanda Nudelman ’27, Associate Editor
 1

Table of Contents

Deepfakes, Generative AI, and Election Misinformation

By: Tatiana Avdienko……………………………...……………………………………………………...3

The California Driving Clean Assistance Program Should Become Federal Law
By: Lorenzo Blanco………………………………………………………………………………………..9

Thaler v. Perlmutter: Monitoring the Monumental AI Copyright Case

By: Marisa Cefola……………………..…………………………………………………………………16

Barriers to the Ballot: An Analysis of Shelby County v. Holder and Its Consequences
By: Ben Denker………………………..…………………………………………………………………22

Regulating Hate Speech: A More Consistent Application of the First Amendment

By: Max Ehrlich……………………..……………………………………………...……………………27

Drawing the Lines: Allen v. Milligan and the Battle for Fair Representation in America
By: Dominic Enright.………………..……………………………………………...……………………34

Formal and Traditional Law in Zambia: Legal Systems in Cooperation and Conflict
By: Robert Farbman.………………..……………………………………………...……………………39

The Federal Reserve: Independence, Accountability, an Constitutional Debate

By: Owen Finn……...………………..……………………………………………...……………………44

The Legality of American Homeschooling

By: Caitlin Gallagher...……………..……………………………………………...……….……………51

The First Step Act: Differing Approaches to Crime Reduction Over Time
By: Emily Gill………...……………..……………………………………………...……….……………56

Serious Mental Illness: A Necessary Exception to the Death Penalty

By: David Gilmore…….…………..……………………..………………………...……….……………63

An Analysis of the Insanity Defense & Double Jeopardy in McElrath v. Georgia

By: Kaila Hall……..…….…………..……………………………………………...……….……………70

When the Music Stops: Can Antitrust Law Dismantle Live Nation’s Dominance?
By: Riley Kramer....…….…………..……………………………………………...……….……………76

Fashion and IP Law: Star Athletic, LLC v. Varsity Brands, Inc. (2017)
By: Gillian Lee….....…….…………..……………………………………………...……….……………82

National Association of Private Fund Managers v. SEC: Statutory Limitations to SEC Rulemaking in
Dodd-Frank
By: Will Long..…....…….…………..……………………………………………...……….……………86
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Outside the Dollhouse and Into the Court: The Importance of the “Doll Test” in Brown and Beyond
By: Ava Malkin..….....….………..…………………………………………...…………….……………92

“Nowhere Else to Go”: Criminalizing Homelessness in City of Grants Pass v. Johnson

By: Tess O’Donoghue..….....…..……………………………………...…...……………….……………97

The Vicious Circle of Poverty and Incarceration

By: Ria Sodhi………………………...……………………………...………………………………..…107

The Role of the U.S. Domestic Courts in the Enforcement of International Treaties
By: Timothy Son…………………...…...………………………...………………………………..……112

When Power Trumps Law: How Security Council Elites Undermine United Nations Justice
By: Emma Staller………………...…...………………………...……..…………………………..……119

Preservation or Progress: The Draft Program Comment on Accessible, Climate-Resilient, and Connected
Communities
By: Jesse Ward…………………...…...………………………...……..…………………………..……125

Representing Children’s Voices: Application of the Best Interests Principle

By: Rena Watanabe……………...…...………………………...……..…………………………..……131

Restraining the Regulatory State: SEC v. Jarkesy et al.

By: Allison Wong………………………………………...……….....…………...………………..……136
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DEEPFAKES, GENERATIVE AI, AND ELECTION MISINFORMATION

Tatiana Avdienko

I. INTRODUCTION
On July 26, 2024, X Chairman Elon Musk reposted a Kamala Harris campaign video on X in
which Harris appeared to state that she “did not know the first thing about running a country.”1 Musk,
however, did not disclose that the video was a deepfake created using artificial intelligence (“AI”).
Artificial intelligence is a form of technology that allows machines to simulate human creativity,
autonomy, comprehension, and learning.2 A deepfake is an AI-generated audio, video, or photo of
someone made to look real, depicting actions or words that someone did not produce.3 Deepfakes have
been present since the late 2010s, with the rise of AI leading to more advanced audio and visual
techniques. Misleading deepfake technology poses a threat to not only the lives of individuals but also to
democratic processes at the core of American politics. This technology may spread false information
about candidates, influencing the people’s vote and the outcome of state and federal elections. While
deepfakes have officially made their way into the United States political sphere, no federal law restricts
how they are used. Calls for AI legislation from activist groups, congresspeople, and even technology
companies have led to the enactment of state laws, such as Alabama’s Distribution of Materially
Deceptive Media Act, and federal proposals such as the NO FAKES Act of 2023. On an international
scale, groups such as the European Union have even taken action with the EU AI Act. As AI technology
continues to develop in the United States, passing effective federal legislation that protects individuals
while allowing technological innovation is crucial in preventing the spread of misinformation.

II. HISTORY OF DEEPFAKE TECHNOLOGY

Deepfake technology has evolved alongside machine learning and artificial intelligence. One of
machine learning algorithms’ first pioneers was mathematician Alan Turing, who published the paper
“Computing Machinery and Intelligence” in 1950. In his paper, Turing determined a method to evaluate
whether machines could think, which would later be known as the field of Artificial Intelligence.4
Artificial Intelligence is “technology that enables computers and machines to simulate human learning,
comprehension, problem solving, decision making, creativity and autonomy.”5 Throughout the 1990s and
into the 21st century, AI flourished due to the development of new technology that created new neural
network architecture, voice assistants, natural language data collection, and machine reading technology.
The first general adversarial network, a model that uses two neural networks to create media that appears
to be authentic, was introduced in 2014.6 A neural network is a machine learning model that mimics the
way that biological neurons function to make decisions.7 The term “deepfake” was first used in 2017 by a
Reddit user sharing pornographic images that used face-swapping technology. Often, deepfake
technology uses generative adversarial networks or variational audio-encoder networks, which are models
that “encode images into low-dimensional representations and then decode those representations back into

1
Ken Besinger, “Elon Musk Shares Manipulated Harris Video, in Seeming Violation of X's Policies,” The New York
Times, July 27, 2024, https://www.nytimes.com/2024/07/27/us/politics/elon-musk-kamala-harris-deepfake.html.
2
Eda Kavlakoglu and Cole Stryker, “What is AI?,” IBM, https://www.ibm.com/topics/artificial-intelligence.
3
“deepfake, n. meanings, etymology and more,” Oxford English Dictionary, n.d.,
https://www.oed.com/dictionary/deepfake_n.
4
Scott Montheith, Tasha Glenn, John R. Geddes, Peter C. Whybrow, Eric Achtyes, and Michael Bauer, “Artificial
intelligence and increasing misinformation,” The British Journal of Psychiatry 224, no. 2 (2024): 33-35,
https://www.cambridge.org/core/journals/the-british-journal-of-psychiatry/article/artificial-intelligence-and-
increasing-misinformation/DCCE0EB214E3D375A3006AA69FFB210D.
5
Cole Stryker and Eda Kavlakoglu, “What Is Artificial Intelligence (AI)?” IBM, 2024,
https://www.ibm.com/topics/artificial-intelligence.
6
Keith D Foote, “A Brief History of Generative AI - DATAVERSITY,” Dataversity, March 5, 2024,
https://www.dataversity.net/a-brief-history-of-generative-ai/.
7
“What is a neural network?,” IBM, accessed November 24, 2024, https://www.ibm.com/topics/neural-networks
 4

images.” These two separate auto-encoders —one decoder of the deepfake subject’s face and one encoder
with a variety of faces — are combined to create a deepfake.8
Since its development, deepfake technology has been weaponized in global contexts. At the onset
of the Russian invasion of Ukraine in March of 2022, Russian propagandists released a deepfake video of
Ukrainian President Volodymyr Zelenskyy, in which he asked citizens to surrender to Russian forces. In
reality, Russian propagandists produced this video, which was the first example of deepfake being
weaponized during an armed conflict.9 Generative AI is not only weaponized during international
disputes, but is also raising questions in domestic courtrooms. In recent federal cases, defense attorneys
accused the prosecution of manipulating audio and video evidence using deepfake technology. For
example, defense attorneys for rioters charged in the Capitol insurrection last January 6, 2021 have
claimed that “the jury could not trust the videos because there was no assurance they were not fake or had
not been altered.” While this “deepfake defense” was unsuccessful, it demonstrates that generative AI
blurs the lines between real and fake evidence, causing issues of reliability.10 The rise of undisclosed
deepfakes—deepfakes that are not labeled as AI-generated—could mean that courtrooms lose trust in all
forms of digital media, making it difficult for victims to gain justice. The true nature of events could
easily be distorted, meaning that the jury would be ill-informed. Due to the dangers that deepfakes
generate, legislators across state, federal, and international governments have passed legislation
addressing the issue.

III. CURRENT LEGISLATION

i. International Legislation
Foreign governmental bodies such as the European Union and China have taken swift action to
prevent the further spread of misinformation. The European Union adopted the EU AI Act, the world's
first comprehensive AI bill. The Act identifies a framework for regulating AI, with a defined scale of
risks ranging from “minimal” to “unacceptable.” The systems deemed “unacceptable” will be banned,
such as “real-time facial recognition systems in public spaces, predictive policing tools and social scoring
systems.”11 These systems are considered unacceptable due to their infringement of personal privacy and
their overreach into the everyday lives of citizens. High-risk AI technology, such as systems used in
everyday situations, such as toys, cars, medical devices, education, employment, and law enforcement,
will be thoroughly assessed before and during their time on the market.
Additionally, generative AI will be subject to EU copyright law, which includes disclosing when
content is AI-generated and preventing models from creating illegal content. Deepfakes must be clearly
labeled as AI-generated.12 After passing in March 2024, the EU AI Act will be implemented in segments
throughout 2027.13 The EU has historically taken an aggressive approach to regulating the ethical use of
technology by companies, with laws such as the General Data Protection Regulation (GDPR) being one
of the toughest consumer privacy protections in the world. The GDPR imposes regulations on any
organizations that collect data from EU citizens and promotes data minimization, privacy policy

8
Meredith Somers, “Deepfakes, explained,” MIT Sloan, 2020, https://mitsloan.mit.edu/ideas-made-to-
matter/deepfakes-explained.
9
“The Rise of Artificial Intelligence and Deepfakes.” Northwestern Buffett Institute for Global Affairs, n. D.,
https://buffett.northwestern.edu/documents/buffett-brief_the-rise-of-ai-and-deepfake-technology.pdf.
10
Herbert B. Dixon, “The “Deepfake Defense”: An Evidentiary Conundrum,” American Bar Association, 2024,
https://www.americanbar.org/groups/judicial/publications/judges_journal/2024/spring/deepfake-defense-
evidentiary-conundrum/.
11
Ziady, Hanna,“Europe is leading the race to regulate AI. Here’s what you need to know,” CNN, 2023,
https://www.cnn.com/2023/06/15/tech/ai-act-europe-key-takeaways/index.html.
12
“EU AI Act: first regulation on artificial intelligence | Topics,” European
Parliament,https://www.europarl.europa.eu/topics/en/article/20230601STO93804/eu-ai-act-first-regulation-on-
artificial-intelligence.
13
EU Artificial Intelligence Act (Regulation (EU) 2024/1689) - Updates, Training, Compliance,
https://www.artificial-intelligence-act.com/.
 5

transparency, consent for data collection, and secure data privacy.14 The EU’s approach focuses on citizen
interests, such as privacy and protection against weaponized generative AI. This approach may, however,
lead to increased costs for AI companies since they must implement the proper oversight and are unable
to profit from some types of generative AI. Meeting industry standards and laws can incur additional
costs for AI companies. Ryan Peeler, a member of the Forbes Technology Council, revealed that “Regular
review and updates to maintain compliance in a dynamic regulatory landscape can significantly inflate
costs over time.” AI models require constant oversight because they are trained by humans and therefore
have implicit biases ingrained into their system.15 With the addition of further restrictions on AI systems,
these oversight practices will continue to grow in scope.
China has also passed legislation concerning AI restrictions. The Cyberspace Administration of
China (CAC) passed legislation that “prohibits the production of deepfakes without user consent and
requires specific identification that the content had been generated using artificial intelligence (AI).”16
Ensuring that viewers are aware of AI-generated content is a significant step forward in curbing the
misinformation that AI can spread. However, China has fallen under scrutiny due to allegations from
Graphika, a company that researches online disinformation. The company called out a “state-aligned
operation promoting video footage of [artificial intelligence]...” in which Beijing was able to “disseminate
disinformation by creating a synthetic avatar posing as a news anchor and reading a story on the divisive
issues of gun control in the United States.”17 China has not been forceful with the implementation of its
deepfake prohibitions, leaving room for citizens to send deepfake propaganda across the country. While
the Chinese legislation is an excellent example of AI regulation in an age of misinformation, it proves that
application and enforcement are equally important. Even if the efforts are aligned with state interests,
governmental bodies should avoid bias in enforcing deepfake laws.

ii. Domestic Federal Legislation

The United States has not yet passed a comprehensive federal act regulating AI technology.
Rather, the federal government has pressured state governments and AI companies to determine the
details of AI restrictions by passing federal bills that outline vague regulatory frameworks. These bills
include the Federal Artificial Intelligence Risk Management Act of 2023. The bill requires the National
Institute of Standards and Technology (NIST) to create standards, specify cybersecurity strategies, and set
developmental requirements that comply with the Artificial Intelligence Risk Management Framework.
The Artificial Intelligence Risk Management Framework was developed by the NIST to “equip
organizations and individuals…with approaches that increase the trustworthiness of AI systems, and to
help foster the responsible design, development, deployment, and use of AI systems over time.”18 This
newly developed set of standards is meant to be incorporated into AI risk management practices in federal
agencies.19 The close collaboration and compromise between legislators’ and companies’ interests may
benefit the American economy. Instead of prohibiting certain behaviors, the federal government has
favored the creation of a framework that companies can adapt and incorporate into their policy. However,
this form of legislation is not aggressive enough to combat the potentially dangerous and unforeseen
outcomes of AI technology. The majority of existing federal bills are focused on overseeing continued

14
Ben Wolford, “What is GDPR, the EU's new data protection law? - GDPR.eu,” GDPR compliance, n.d.,
https://gdpr.eu/what-is-gdpr/.
15
Ryan Peeler, “Council Post: The Hidden Costs Of Implementing AI In Enterprise,” Forbes, 2023,
https://www.forbes.com/councils/forbestechcouncil/2023/08/31/the-hidden-costs-of-implementing-ai-in-enterprise/.
16
Asha Hemrajani, “China's New Legislation on Deepfakes: Should the Rest of Asia Follow Suit?,” The Diplomat,
2023, https://thediplomat.com/2023/03/chinas-new-legislation-on-deepfakes-should-the-rest-of-asia-follow-suit/.
17
Diego Laje, “China's Deep Fake Law Is Fake,” AFCEA International, June 1, 2023,
https://www.afcea.org/signal-media/cyber-edge/chinas-deep-fake-law-fake.
18
“Artificial Intelligence Risk Management Framework (AI RMF 1.0),” NIST Technical Series Publications,
January, 2023, https://nvlpubs.nist.gov/nistpubs/ai/nist.ai.100-1.pdf.
19
“S.3205 - 118th Congress (2023-2024): Federal Artificial Intelligence Risk Management Act of 2024,” n.d.,
Congress.gov, https://www.congress.gov/bill/118th-congress/senate-bill/3205.
 6

innovation rather than specifically restricting current AI capabilities. Due to the lack of preventative
legislative measures in the early stages of generative AI, the federal government should focus on
preventing the further mishandling of currently unregulated technology.

iii. Domestic State Legislation

State governments have unevenly passed legislation regarding AI, with some states taking more
significant strides than others to prevent election interference and protect individuals. For example, in
2024, Alabama enacted the Distribution of Materially Deceptive Media Act, which criminalizes the
dissemination of deceptive media concerning an election. Colorado’s Candidate Election Deepfake
Disclosures Act similarly criminalizes the disbursement of AI-generated election media without
specifying the use of AI in its creation.20 Many states have gained traction in regulating generative AI, but
struggles to balance economic interests with AI regulations remain. In California, politicians have taken
steps to regulate election-related deepfake technology through bills such as the Defending Democracy
From Deepfake Deception Act of 2024 and the Elections: Deceptive Media in Advertisements Act.
However, Governor Gavin Newsom recently vetoed one of the first company-centered AI regulatory bills
in the United States. The bill would have subjected most AI models to comprehensive safety testing and
created a “kill switch” in case generative AI became too powerful. In his decision, Governor Newsom
cited that this bill could encourage AI companies to leave the state and stifle technological
advancements.21 Governor Newsom’s decision to veto the bill demonstrates the economic power that
technology corporations hold in states, making it difficult for individual states to pass restrictive AI
legislation.
Approximately 25 states, including states like Nevada, Montana, Virginia, and Georgia, have yet
to pass legislation on deepfakes in elections.22 Imbalances in AI regulation mean that state legislatures are
largely ineffective because deepfake media can easily cross state lines.

IV. COMPANY REGULATION

It is more common to encounter robust standards at a company level, as opposed to legislative
restrictions on company practices. Microsoft, one of the leading companies in developing AI technology,
uses the Responsible AI Standard, which is closely in line with the NIST’s AI Risk Management
Framework. In this Standard, engineering teams identify and build mitigations to address potential harms
of AI, while red teams test and retest AI systems. Red teams are groups of ethical hackers that carry out
simulated cybersecurity attacks to test system effectiveness.23 The Responsible AI Standard is
“responsible-by-design” since it is built to address issues before products enter the market.24 While
rigorous, the Standard has failed to prevent the spread of misinformation and the weaponization of AI
against individuals, governments, and even the democratic political system.
Some companies embrace the idea of allowing Congress to play a role in AI regulation:
“OpenAI’s Sam Altman endorsed the idea of a federal agency dedicated to AI oversight… Microsoft’s
Brad Smith and Meta’s Mark Zuckerberg have previously endorsed the concept of a federal digital
regulator.” It is important to note that company leaders have endorsed oversight, not regulation, of their
AI models. Only having oversight provides companies with more freedom than a set of clear and strict

20
“Deceptive Audio or Visual Media (“Deepfakes”) 2024 Legislation,” National Conference of State Legislatures,
November 22, 2024, https://www.ncsl.org/technology-and-communication/deceptive-audio-or-visual-media-
deepfakes-2024-legislation.
21
João de Silva, “California governor Gavin Newsom vetoes landmark AI safety bill,” BBC, September 30, 2024,
https://www.bbc.com/news/articles/cj9jwyr3kgeo.
22
“Tracker: State Legislation on Deepfakes in Elections,” Public Citizen,, https://www.citizen.org/article/tracker-
legislation-on-deepfakes-in-elections/.
23
Evan Anderson, Jim Holdsworth, and Matthew Kosinski, “What is Red Teaming?,” IBM, November 7, 2024,
https://www.ibm.com/think/topics/red-teaming.
24
“Governing AI: A Blueprint for the Future,” Microsoft,
https://query.prod.cms.rt.microsoft.com/cms/api/am/binary/RW14Gtw.
 7

regulatory standards that limit the direction the company can take AI innovation. While companies
encourage a governmental role in the development of generative AI, it seems as though some companies
and tech industry leaders prefer minimal intervention. Former Google Executive Chairman Eric Schmidt
has stated that he “would much rather have the current companies define reasonable boundaries.”25 If
companies were the only entities regulating themselves, the risk of economic greed usurping the
importance of AI safety and moderation would be too great a threat. Companies need more involved input
from other stakeholders, such as the federal government, which is less concerned with the economic
profits of companies and more concerned with the preservation of democracy.

V. PROPOSED SOLUTIONS
Most proposed solutions seek to strike a balance between innovation, economic advancement,
and individual safety. The viability of these solutions rests in their ability to balancethe interests of
companies, the government, and concerned citizens. At the federal level, Representatives Madeleine Dean
and María Elvira Salazar introduced the “Nurture Originals, Foster Art, and Keep Entertainment Safe
(NO FAKES) Act,” which would give citizens the federal right to “control digital replicas of their voice
and likeness.”26 Since this bill focuses on citizen empowerment and less on regulating AI, companies will
have to work closely with government officials to meet regulatory standards during and after
development. Bills such as the NO FAKES Act have been introduced into the House of Representatives
but have not gained traction. The lack of federal regulation on AI companies disincentivizes states from
creating regulatory measures since companies may relocate to a state with fewer AI restrictions. However,
leaving AI regulation to the state governments may allow the federal government to measure the success
of legislation when designing and implementing national regulatory frameworks. Instead of imposing
restrictions and transparency requirements on companies, state governments have been forced to regulate
those using generative AI. With the rapid growth of AI technology, the federal government must work
swiftly to implement boundaries around generative AI in the interest of democracy. Continued
weaponization and development of such technologies overtakes implemented state regulatory measures.
Congress should look to states’ enacted deepfake restrictions when determining policy, since any
economic or social consequences of regulation have likely played out in these states and can be treated as
a microcosm for the implications of greater regulatory policy.

VI. POLICY RECOMMENDATIONS AND IMPLICATIONS

The United States government must pass comprehensive AI legislation that prioritizes company
regulation while allowing freedom for innovation. It would be beneficial to adopt a similar framework as
the European Union, which allows lawmakers and companies to identify and regulate high-risk AI
technologies which can include weaponized deepfakes.
Arguments against regulating companies state that legislation could stifle innovation and
negatively impact the economy. One study has found that since United States regulatory measures often
hinder the number of employees a company hires, companies may be hesitant to hire.27 With many
regulatory acts increasing the amount of human oversight needed, companies may have to rebalance their
resources dedicated to innovation and supervision. However, if the federal government continues to favor
the economic growth produced by technological innovation over safety concerns, unforeseen dangers will
continue to arise and legislators will lag behind technological innovations at an alarming rate. Tradeoffs
such as stifling innovation should be considered in legislation, but so should the recent weaponization of
the latest technological advancements.

25
Tom Wheeler, “The three challenges of AI regulation,” Brookings Institution, June 15, 2023,
https://www.brookings.edu/articles/the-three-challenges-of-ai-regulation/.
26
“Dean, Salazar Introduce Bill to Protect Americans from AI Deepfakes,” Madeleine Dean, September 12, 2024,
https://dean.house.gov/2024/9/dean-salazar-introduce-bill-to-protect-americans-from-ai-deepfakes.
27
Betsy Vereckey, “Does regulation hurt innovation? This study says yes,” MIT Sloan, June 7, 2023,
https://mitsloan.mit.edu/ideas-made-to-matter/does-regulation-hurt-innovation-study-says-yes.
 8

With the prominence of technological globalization, international regulations may seem like the
best solution. However, the United States has already struggled to reach a domestic consensus on
regulatory measures. Additionally, as one of the most developed countries in the world, the United States
can set an example for other countries when it comes to regulating AI. Ideal legislation should ensure that
AI-generated media is clearly labeled or watermarked and it should reduce the incidence of technology
that undermines the labeling of AI-generated media. Companies would continue to be subjected to
oversight, but more preventative measures would need to occur. In any case, effective AI legislation will
create harmony between economic prosperity, innovation, and a safer future for democracy.
 9

THE CALIFORNIA DRIVING CLEAN ASSISTANCE PROGRAM

SHOULD BECOME FEDERAL LAW
Lorenzo Blanco

I. BACKGROUND: ELECTRIC VEHICLE CONTEXT

For the average American, the idea of the electric car is nothing new. Once a novelty almost
entirely monopolized by the Tesla brand, electric vehicles have quickly become a sizable market for every
major automaker in the United States. With a wealth of new options from more mainstream car
manufacturers like Toyota, Chevrolet, Hyundai, and Ford, the electric vehicle (EV) market is more
diverse and expansive than ever before. With all of these new options, switching to electric or alternative
fuel vehicles has become a ubiquitous practice amongst those searching for a swift yet introductory
transition towards a more sustainable lifestyle. Hailed as a cost and energy efficient solution to the
mobility problem in the midst of the climate crisis, EVs have taken the country and the world by storm.
However, this wave of green transportation has left behind those in most need of clean, safe, dependable,
and affordable transportation.
Certain states have enacted enticing incentive programs to ease the financial burden that
transitioning to fuel efficient and electric vehicles brings their citizens. While these programs have had
varying levels of success and actual demonstrated commitment from consumers, one state initiative aims
to revolutionize the scene: the California Driving Clean Assistance Program (DCAP). Passed just this
year in 2024, DCAP is California’s most recent attempt towards addressing the shortcomings of its
previous EV rebate programs. DCAP’s need-based award system for incentivized funding, as well as the
availability of funds for both drivers and non-drivers alike, makes this program an exceptional new
catalyst for opening access to cleaner, safer transportation that should become national law.

II. CALIFORNIA CONTEXT

The State of California is the country’s undisputed leader in clean vehicle incentivization. In
response to the passage of the Global Warming Solutions Act in 2006.12 California was the first state to
implement EV rebates fully beginning in 2010 to meet emissions reduction standards outlined in the act.3
However, the state’s commitment to increasing fuel efficiency on its roads dates back further. In 1990, the
California Air Resources Board (CARB) took the first critical step by mandating that all brands selling
vehicles within the state develop fuel efficient hybrids or alternative fuel vehicles for customers to
purchase through the Zero Emissions Mandate.4 In 1998, CARB began extending select partial credits to
consumers purchasing hybrid vehicles.5 With a population of just under 30 million, California was—and
remains today—the most populous state in the union.6 Naturally, a clean vehicle mandate in the country’s

1
Yang Ju, Lara J. Cushing, and Rachel Morello-Frosch. “An Equity Analysis of Clean Vehicle Rebate Programs in
California.” Climatic Change 162, no. 4 (September 5, 2020): 2087–2105. https://doi.org/10.1007/s10584-020-
02836-w.
2
Assem. Bill 32, 2005-2006 Reg. Sess., 2006 Cal. Stat.
3
“Electric Car Incentives in California in 2024.” Coltura, October 14, 2024. https://coltura.org/electric-vehicle-
rebate-california/#:~:text=The%20California%20EV%20Rebate%20Overview,-
One%20of%20the&text=Since%202010%2C%20the%20Clean%20Vehicle,on%20the%20road%20in%20Californi
a.
4
“Zero-Emission Vehicle Program” | California Air Resources Board. Accessed November 7, 2024.
https://ww2.arb.ca.gov/our-work/programs/zero-emission-vehicle-
program/about#:~:text=The%20Zero%2DEmission%20Vehicle%20(ZEV,of%20passenger%20vehicles%20in%20C
alifornia.
5
Shaheen, Susan A., John Wright, and Daniel Sperling. “California’s Zero-Emission Vehicle Mandate: Linking
Clean-Fuel Cars, Carsharing, and Station Car Strategies.” Transportation Research Record: Journal of the
Transportation Research Board 1791, no. 1 (January 2002): 113–20. https://doi.org/10.3141/1791-17.
6
“California Population 1900-2023.” MacroTrends. Accessed November 7, 2024.
https://www.macrotrends.net/global-metrics/states/california/population.
 10

biggest market sparked unprecedented innovation in the automotive industry from manufacturers anxious
to maintain their positions in the overall United States economy. In less than a decade, iconic vehicles like
the Toyota Prius and Honda Insight—the world’s first plug-in-hybrid EV—hit showrooms across the state
of California for the first time.7 Even 40 years later, models like the Toyota Mirai, Honda Clarity Electric,
and Honda CRV Fuel Cell specifically designed for California consumers are a clear reminder of the
state’s importance to automakers’ profitability in the country.8 California has also wisely positioned itself
as a leading exporter of clean energy vehicles, meaning its citizens not only benefit from the widest
availability of clean energy vehicles to purchase, but also the profits of the industry expanding across the
country.9 With the California legislature prodding the automotive industry to truly accelerate the clean
vehicle space, any automotive brand that sought to remain meaningfully competitive in California needed
to bring a fuel efficient model to market. In order to not only foster the development but expansion of the
clean vehicle sector, California began adopting formal incentive and rebate programs statewide.

III. ANALYSIS OF PREVIOUS CALIFORNIA REBATE PROGRAMS

Previous California clean vehicle rebate programs laid the foundation for DCAP’s successful
design. DCAP is certainly not the first California EV rebate program to be need-based. The California
Clean Vehicle Rebate Project (CVRP), first launched in 2010 to compensate new owners of plug-in-
hybrid, electric, and fuel-cell battery vehicles,10 originally offered anywhere between $1,500-$5,000 in
rebates for the purchase of any of these alternative fuel vehicles.11 It was not until 2016 that an “income
cap” of $150,000 after which rebates no longer applied was instituted on California consumers and
families looking to take advantage of the deals.12 The CVRP income cap was an absolute necessity; it is
an undisputed fact that the majority of environmental burdens, especially the burden of poor air quality in
urban centers, disproportionately falls on the shoulders of socioeconomically disadvantaged citizens in
communities of color. In Los Angeles, California’s largest city, fifteen percent of white Angelenos live in
neighborhoods with dangerously high pollution compared to over a third of Black Angelenos, twenty-
eight percent of Latino Angelenos, and twenty-seven percent of all Angelenos of color.13 Clean vehicle
rebates serve to entice more customers to purchase lower emitting vehicles with the ultimate goal of
alleviating air pollution burdens for the state. Unfortunately data collected from CVRP’s start in 2010 to
its end in 2023 proves that the program did not adequately address these inequalities. In a study conducted
by researchers from the UCLA Luskin School of Public Affairs, out of the $1.6 billion in total rebates
allocated to consumers from CVRP for the purchase of new electric or alternative fuel vehicles, just $314
million was awarded within designated Disadvantaged Communities in California as defined by the

7
Kurz, Joaquin. “Hybrid Electric Vehicles: A History of Technological Innovation - USC Viterbi School of
Engineering.” USC Viterbi School of Engineering - USC Viterbi School of Engineering, October 27, 2017.
https://illumin.usc.edu/hybrid-electric-vehicles-a-history-of-technological-innovation/.
8
“What Credits, Subsidies, or Rebates Are Available for the CR-V E:FCEV?” Honda Automobiles. Accessed
November 7, 2024. https://automobiles.honda.com/cr-v-fcev.
9
“California’s clean vehicle rebate program will transition to helping low-income residents.” | California Air
Resources Board, August 21, 2023. https://ww2.arb.ca.gov/news/californias-clean-vehicle-rebate-program-will-
transition-helping-low-income-residents.
10
Yang Ju, Lara J. Cushing, and Rachel Morello-Frosch. “An Equity Analysis of Clean Vehicle Rebate Programs in
California.” Climatic Change 162, no. 4 (September 5, 2020): 2087–2105. https://doi.org/10.1007/s10584-020-
02836-w.
11
Yang, Cushing, and Morello-Frosch, “Equity Analysis,” 2087-2105.
12
Yang, Cushing, and Morello-Frosch, “Equity Analysis,” 2087-2105.
13
Ashley Mackey and Grace Manthey. “Neighborhoods of Color East of Lax Have Some of the Highest Health
Risks, Data Shows.” ABC7 Los Angeles, October 30, 2021. https://abc7.com/lax-air-pollution-respiratory-illness-
inequities-los-
angeles/11174361/#:~:text=Out%20of%20all%20white%20Angelenos,of%20all%20people%20of%20color.
 11

California Environmental Protection Agency.14 Disadvantaged Communities are communities residing in

areas within the top twenty-five percent of air pollution per the CalEnviroScreen scale as well as
communities within federally recognized Indigenous tribal jurisdiction.15 Though CVRP’s income cap
approach alone was a step in the right direction towards protecting available rebate funds to award
consumers under Disadvantaged Community classification in theory, UCLA Luskin School of Public
Affairs’ data shows that the execution fell short.
California’s second main clean vehicle rebate program—called the Enhanced Fleet
Modernization Program (EFMP)— took effect in 2015 as the state government’s solution to addressing
the issues of equity in their rebating process.16 EFMP formally widened the parameters for vehicles that
qualified for rebates, “setting stricter income caps for participation” and offering “higher rebate amounts
for lower-income consumers and disadvantaged communities.”17 Potential EFMP rebates for the purchase
of new, fully electric cars reached a new peak at $9000. Core to EFMP’s structure was its “Retire and
Replace” clause that offered customers additional “Plus Up” rebates on top of their base rates were they
to have an internal combustion engine car eight years or older and live within the designated
Disadvantaged Community bounds.18 Also revolutionary in EFMP was that it offered incentives and
rebates for first time purchases of not only new clean energy vehicles, but used vehicles in this category
as well. Offering incentives for used vehicles addresses equity concerns in the rebate process in a targeted
approach unseen in previous rebate programs. Rebates offered through EFMP after CVRP’s
discontinuation for select used vehicles range today from $2,000-$7,500 for zero emission battery EVs,
$4,500-$7,500 for hydrogen fuel cell battery vehicles, $1,000-$6,500 for plug-in-hybrid vehicles, and
$750 for zero emission motorcycles. From 2015 through November of 2023, low-income consumers
could take advantage of CVRP and EFMP rebates simultaneously, meaning they could earn a
maximum—though rare—total rebate of $14,000.19 Despite these seemingly attractive offers, all rebates
from EFMP as well as CVRP came with one major caveat: all rebates for the purchase of a clean energy
vehicle were offered on the contingency that consumers could amass the capital needed to purchase the
car in the first place.20 This major weakness in EMFP and CVRP meant that it was up to the consumer to
be able to pay for the full price of the clean energy vehicle upfront and a rebate would be issued
afterward. It is a market fact that every alternative fuel vehicle comes with a higher manufacturer
suggested retail price (MSRP); the higher cost of lithium batteries and eventual savings on fuel costs are
enough justification for brands to feel entitled to price their alternative fuel model offerings well over
their gasoline powered counterparts.
The example of the 2024 Nissan Leaf illustrates the problem. As the cheapest EV for sale in the
United States, the four-door hatchback Nissan Leaf has an MSRP of $29,280 to start excluding taxes,

14
“What Is a Disadvantaged Community (DAC)?” CALeVIP. Accessed November 24, 2024.
https://calevip.org/faq/what-disadvantaged-community-dac-11#:~:text=Log%20In-
,What%20is%20a%20disadvantaged%20community%20(DAC)%3F,CalEnviroScreen%204.0%20(1%2C984%20tr
acts).
15
Rachel Connolly, Daniel Coffee, and Gregory Pierce. “An analysis of California electric vehicle incentive
distribution and vehicle registration rates since 2015: Is California achieving an equitable clean vehicle transition?”
June 2024. escholarship.org/uc/item/7ht4t1km.
16
Yang Ju, Lara J. Cushing, and Rachel Morello-Frosch. “An Equity Analysis of Clean Vehicle Rebate Programs in
California.” Climatic Change 162, no. 4 (September 5, 2020): 2087–2105. https://doi.org/10.1007/s10584-020-
02836-w.
17
Yang, Cushing, and Morello-Frosch, “Equity Analysis,” 2087-2105.
18
Yang, Cushing, and Morello-Frosch, “Equity Analysis,” 2087-2105.
19
Yang Ju, Lara J. Cushing, and Rachel Morello-Frosch. “An Equity Analysis of Clean Vehicle Rebate Programs in
California.” Climatic Change 162, no. 4 (September 5, 2020): 2087–2105. https://doi.org/10.1007/s10584-020-
02836-w.
20
Elkind, Ethan N., Ted Lamm, Katie Segal, and Gil Damon. Rep. Driving Equity: Policy Solutions to Accelerate
Electric Vehicle Adoption in Lower-Income Communities. Climate Change and Business Research Initiative, n.d.
 12

registration, and dealer-specific additional fees.21 The 2024 Nissan Sentra, a similarly seized, internal
combustion engine four door sedan in the company’s lineup with highly comparable standard features to
its electric sibling, has a base MSRP of $21,590.22 For the electric option in Nissan’s lineup, consumers
must pay a $7,690 premium—a considerable obstacle to purchasing a vehicle. To make matters worse,
consumers looking to purchase their vehicle through APR financing cannot be absolutely certain of the
exact amount they will receive from the State of California on the date of purchase. Furthermore, for
consumers living within disadvantaged communities with statistically lower credit scores, a rebate issued
by the state after purchase does nothing at the dealership negotiating table when their payment soars to
hundreds of dollars more than those with higher credit scores. In California under the current EFMP
program, the only way to guarantee the clean vehicle rebate is factored into an auto deal is to lease that
vehicle, since dealers take into account a standard rebate estimate of $7,500 when constructing monthly
payments. This degree of uncertainty leaves many consumers, especially lower income consumers,
trapped in lease deals with the manufacturer that limit mileage and impose arbitrary standards for
maintenance and even damage penalties. At the end of the lease, customers who did not want to lease
their vehicle in the first place are left without transportation and searching for another vehicle if they can
afford one at all.
Together, CVRP and EFMP pioneered the clean vehicle rebate practice. However, as
disadvantaged communities and communities of color continue to bear the majority of air pollution costs
while reaping the least of the benefits these programs offer, CVRP and EFMP can no longer be ignored.
In the words of Dr. Steven Cliff, Executive Officer of CARB, “a clean air future is only possible if every
Californian can access clean transportation options.”23 That is exactly what DCAP will, if implemented to
the most complete extent, ensure.

IV. DCAP SPECIFICS AND CRITICAL BENEFITS AT A GLANCE

DCAP maximizes the potential of California's previous CVRP and EFMP alternative fuel vehicle
rebate programs by essentially combining the two programs while greatly increasing the standard of and
access to incentives offered for consumers, opening the doors to rebates for non-vehicle owners looking
for sustainable mobility. Passed in early 2024 and set to take effect by December of this year, DCAP aims
to solve the problems presented by CVRP's unequal distribution of rebate benefits and EFMP’s rebate
accessibility issues. DCAP prioritizes the effort to help low income consumers switch to clean
transportation at its foundation, with consumer and family annual income thresholds outlined as
qualification for the benefits of the program. According to the parameters of DCAP, consumers are
eligible for its benefits if they earn up to 300 percent of the United States government’s Federal Poverty
Level, with annual updates to adjust specific income thresholds as described.24 DCAP gives consumers
the opportunity to trade in their internal combustion engine vehicles from 2009 or older for a new or used
alternative fuel vehicle in exchange for a $12,000 stipend.25 For consumers with a car that falls outside the
program’s specified model year range or without a vehicle at all, DCAP offers a mobility incentive up to
$7,500 upfront as well, meaning even more can take advantage of this program’s benefits. Consumers can

21
“2025 Nissan Leaf Features: Range, Charging, Battery & More.” Nissan USA. Accessed November 8, 2024.
https://www.nissanusa.com/vehicles/electric-cars/leaf/features.html.
22
“Nissan Leaf Features.”
23
“California’s clean vehicle rebate program will transition to helping low-income residents” | California Air
Resources Board, August 21, 2023. https://ww2.arb.ca.gov/news/californias-clean-vehicle-rebate-program-will-
transition-helping-low-income-residents.
24
“Driving Clean Assistance Program” | California Air Resources Board. Accessed November 8, 2024.
https://ww2.arb.ca.gov/resources/fact-sheets/driving-clean-assistance-
program#:~:text=%E2%80%8BThe%20new%20Driving%20Clean,not%20scrapping%20an%20older%20vehicle.%
20Accessed%204%20Oct.%202024.
25
“California’s clean vehicle rebate program will transition to helping low-income residents” | California Air
Resources Board, August 21, 2023. https://ww2.arb.ca.gov/news/californias-clean-vehicle-rebate-program-will-
transition-helping-low-income-residents.
 13

use this $7,500 toward bus passes, ride share subscriptions, e-bike purchases, and other modes of clean
public or private transportation.
Some may be quick to point out that during the time of CVRP and EFMP, those same low income
consumers could maximize their rebate benefits at up to $14,000. However, besides the fact that CVRP’s
termination brings down that total significantly, the $14,000 in rebates was issued after purchase or
leasing a vehicle. DCAP instead offers $12,000 up front for consumers to take to the dealership
negotiating table. In addition, where CVRP and EFMP beneficiaries were awarded less money based on
the model and condition of the vehicle they purchase, DCAP breaks that precedent. The incentive rate for
DCAP is a tiered system of awarding based on demonstrated financial need. Instead of arbitrarily
deciding what to award consumers based on the condition and model of the vehicle they purchase like
under previous programs, DCAP prioritizes consumers with the most financial need.26 Even better, DCAP
allows low income consumers to qualify for loan rates at dealerships capped at eight percent.27 For many
Californians with lower credit scores or a lack of established credit living in disadvantaged communities
across the state, auto loan approvals and interest rates are often the difference between driving off the
dealer lot with a new car or leaving the dealership empty-handed. DCAP’s benefits are evident, but its
one drawback is less so: its geographic limitation. Finally, DCAP will not bring an immediate end to
EFMP, but instead initiate a gradual phase-out operation of the old program that will allow California to
adopt newer, better rebate programs in conjunction with other smaller rebate programs the state already
has in place.

V. EXPANDING DCAP BEYOND THE STATE OF CALIFORNIA

Dr. Steven Cliff’s words ring true not only for the state of California, but for the country as a
whole. To see a clean air future, everyone in the country needs equal access to clean transportation.
Thanks to its aggressive clean vehicle mandates, incentives, and rebates, California now has 1.5 million
clean fuel vehicles on the road as of 2023—two years ahead of its 2025 goal.28 CVRP and EFMP are
estimated by CARB to have prevented the emission of 9.9 million metric tonnes of carbon dioxide.29
Impressively, California and 11 other states in the Union pledge to phase out the sale of internal
combustion engine vehicles entirely by 2035.30 It is proven that when consumers have economic incentive
backed by the government, they will make the switch to alternative fuels when they have the means to.
The unfortunate reality of California’s CVRP and EFMP programs is that the keys to these exciting clean
energy vehicles mostly ended up in the hands of a wealthy, predominantly white minority at the exclusion
of the socioeconomically disadvantaged and people of color. Researchers from the University of
California, Los Angeles and the University of California, Berkeley found that clean energy vehicle
ownership levels even in the years of CVRP and EFMP decreases as neighborhood income levels
decrease.31 Clean energy vehicle ownership also decreases by neighborhood as percentages of Hispanic
and Black residents increase.32 Benefits and emissions reductions resulting from the mass adoption of an
incentive program like DCAP across the country would be unprecedented and would break down
countless barriers to clean, safe, and dependable transportation especially in socioeconomically
disadvantaged communities of color. Currently, an estimated 14 million Americans live without access to

26
“Transition to helping low-income residents,” California Air Resources Board.
27
“Transition to helping low-income residents,” California Air Resources Board.
28
“California’s clean vehicle rebate program will transition to helping low-income residents” | California Air
Resources Board, August 21, 2023. https://ww2.arb.ca.gov/news/californias-clean-vehicle-rebate-program-will-
transition-helping-low-income-residents
29
Tyler Graham and Dan Avery. “12 US States Are Planning to Ban the Sale of Gas-Powered Cars.” CNET, June
12, 2024. https://www.cnet.com/home/electric-vehicles/states-banning-new-gas-powered-cars/.
30
Graham and Avery, “12 US States.”
31
Yang Ju, Lara J. Cushing, and Rachel Morello-Frosch. “An Equity Analysis of Clean Vehicle Rebate Programs in
California.” Climatic Change 162, no. 4 (September 5, 2020): 2087–2105. https://doi.org/10.1007/s10584-020-
02836-w.
32
Yang, Cushing, and Morello-Frosch, “Equity Analysis,” 2087-2105.
 14

reliable transportation, a statistic directly correlated and in a feedback loop with income inequality. When
millions lack dependable transportation in their lives, job security and quality of life sharply decreases.33
Incentive programs highlight the fact that the problem in getting more people across the country to make
the switch to alternative fuels in transportation therefore does not lie in the widely publicized critiques of
EVs like range anxiety, but rather in economic barriers. Even as California and other states make strides
to break down these economic barriers, others like Wyoming have taken a combative approach to the
wave of electrification and alternative fuels in transportation that stems from a sense of insecurity in a
changing global industry. Wyoming Senate Joint Resolution 4, a resolution to entirely end EV sales in the
state by 2035, is just one example of the oil and gas industry’s documented fears of the clean vehicle
market’s rise.34 To the Wyoming legislature, public, and many Americans in general, electrification and
other alternative fuels signals a massive decline in economic activity, particularly in the fossil fuel
extraction industry. The voices of coal miners often come to mind in the debate between large fossil fuel
corporations and environmentalists, raising the alarm that energy transition has and will continue to come
at the expense of their jobs. While the United States and the world must move away from fossil fuel
dependency, the opinions and realistic needs of mining and refinery employees who rely on fossil fuel for
their livelihoods are often callously dismissed. However, the energy transition does not have to continue
with this trend. The Salton Basin of California is an example of how the renewable energy transition
holds the potential for new, innovative, and cleaner jobs for these workers to turn to while the country as
a whole follows suit.

VI. THE SALTON BASIN AND LITHIUM MINING

Naturally, a rise in incentivized consumption of clean vehicles will necessitate a rise in
production of those vehicles and therefore a rise in the need of lithium. Lithium ion batteries are criticized
by many for what they see as a mining process almost equally as harmful as fossil fuels in terms of
environmental degradation and emissions, yet the unique circumstances of California’s Salton Basin give
the country— and the world—a unique opportunity. The result of a sudden breach of an irrigation channel
diverted from the Colorado River in the early 20th century, the Salton Sea became an inland haven for
human and non-human life alike.35 Thriving tourism and hospitality industries grew exponentially in the
beginning of the Salton Sea’s life. However, when the lake’s water levels began to rapidly shrink in the
1960s and 1970s, decades of agricultural runoff into the water became a grave problem. Today, the
hypersalinity of the water has left the lake almost destitute and has for many residents entirely eliminated
any hope of rekindling the same prosperous lives they once knew along its banks.36 That sense of
hopelessness changed abruptly when scientists discovered immense lithium deposits underground in the
Salton Basin, enough lithium to make the entirety of the United States lithium-independent37 and to meet
nearly forty percent of the globe’s demand for the ore.38 The Salton Basin has the potential to supply the
world with what experts call the “greenest lithium,” since mining techniques planned from companies like
EnergySource, Berkshire Hathaway Renewables, and Controlled Thermal Resources plan to mine for
lithium using expanded infrastructure of the already existing electrical generation technique of brine

33
Johnson, Steven Ross. “Millions of Americans Lack Reliable Transportation. It May Affect Their Health.”
National Center for Mobility Management, January 12, 2024.
https://nationalcenterformobilitymanagement.org/news/millions-of-americans-lack-reliable-transportation-it-may-
affect-their-health/.
34
Tyler Graham and Dan Avery. “12 US States Are Planning to Ban the Sale of Gas-Powered Cars.” CNET, June
12, 2024. https://www.cnet.com/home/electric-vehicles/states-banning-new-gas-powered-cars/.
35
“History – Salton Sea Authority.” n.d. Salton Sea Authority. Accessed November 3, 2023.
https://saltonsea.com/get-informed/history/.
36
Emma Newburger. 2021. “California's Salton Sea spewing toxic fumes, creating ghost towns.” CNBC.
https://www.cnbc.com/2021/11/06/californias-salton-sea-spewing-toxic-fumes-creating-ghost-towns-.html.
37
Bill Owens, dir. 2023. 60 Minutes. Season 55, episode 33, “Lithium Valley.” CBS News. Aired May 4, 2023.
38
Katie Brigham. 2022. “The Salton Sea could produce the world's greenest lithium, if new extraction technologies
work.” CNBC. https://www.cnbc.com/2022/05/04/the-salton-sea-could-produce-the-worlds-greenest-lithium.html.
 15

extraction.39 With multiple competitive companies emerging and investing within a currently
impoverished community, job insecurity would be a problem of the past for the residents of the Salton
Basin while auto manufacturers would have more than enough lithium to increase production of their
alternative fuel vehicles. DCAP as national law, clearly then, is a viable and realistic goal toward curbing
emissions in the midst of the global climate crisis.

VII. CONCLUSION
DCAP is the product of acknowledging, noting, and acting on the successes and failures of clean
vehicle rebate programs by the state of California. While California continues to show its commitment,
those that rely on exploiting the fear of job losses from fossil fuel workers to stave off the expansion of
clean vehicle mandates and carbon emissions reduction goals can look to the Salton Sea as a critical
epicenter of how industry and clean transportation can work in harmony together. Specifically engineered
to help those most in need of clean and reliable transportation, DCAP is a true testament to the power of
hybrid environmental governance in California and the state’s commitment to a clean air future.

Katie Brigham. 2022. “The Salton Sea could produce the world's greenest lithium, if new extraction technologies
39

work.” CNBC. https://www.cnbc.com/2022/05/04/the-salton-sea-could-produce-the-worlds-greenest-lithium.html.

 16

THALER V. PERLMUTTER:
MONITORING THE MONUMENTAL AI COPYRIGHT CASE
Marisa Cefola

I. INTRODUCTIONS TO ARTIFICIAL INTELLIGENCE AND COPYRIGHT

There are two primary types of artificial intelligence (AI) prevalent in everyday life. The first is
traditional AI, which uses “if-then” programming to guide a system’s decision-making process. For
example, a traditional AI system recommends medical diagnoses to doctors after being provided with
patients’ reported symptoms (e.g., if a patient presents a certain symptom, then AI may perceive that
symptom to be part of a certain disease). In contrast, generative AI (GAI) systems are trained using large
data sets and are designed to generate creative content such as artwork or writing. By identifying patterns
in the data, these systems can replicate and produce various creative works with a process known as
machine learning.1 This process makes GAI a Large Language Model (LLM), which can comprehend and
generate natural, human-like language that allows it to perform a wide array of tasks.2 The launch of
Open AI’s ChatGPT on November 30, 2022, propelled GAI and LLMs into the mainstream, gaining 100
million users within two months on the market. In turn, these technologies have surged in popularity
across corporations and entire industries due to their rapid pace of innovation. GAI and its future potential
raise ethical and intellectual property concerns in these industries, however.3 For instance, GAI was part
of a central dispute in the 2023 Writers Guild of America strike, as writers demanded more regulations
surrounding the systems. Hollywood producers used machine learning to produce scripts, using writers’
work as part of training data sets (in which writers were not compensated for these efforts) as a cheap
alternative to human labor. The writers were ultimately successful in prohibiting AI from being
considered an original work in the industry.4 AI being at the forefront of the writer’s strike demonstrates
its growing prominence in society, which has brought up new questions regarding AI’s intersection with
United States copyright law.
According to the United States Copyright Office, original works “are independently created by a
human author and have a minimal degree of creativity.”5 Owning a copyright for an original work
provides the exclusive rights to make, distribute, and sell copies of creative works.6 This allows creators
to control their works’ value and generate profit through exclusivity, which stimulates an incentive to
innovate in both the sciences and the arts. Stephen Thaler is one such innovator. Thaler developed a
computer system—which he called the “Creativity Machine”—with the ability to generate artwork
analogous to a human-created piece of art. The Creativity Machine uses GAI capabilities to do this, which
include learning patterns of existing human work data sets and generating work with similar patterns
based on a user’s text prompt.7 Thaler sought to obtain a copyright for the artwork itself and was denied

1
Ivy, Patrick. “How AI may impact intellectual property rights.” Newburn Law. July 11, 2023.
https://www.newburnlaw.com/how-ai-may-impact-intellectual-property-rights/.
2
IBM. “What are large language models (LLMs)?” IBM. n.d. https://www.ibm.com/topics/large-language-models
3
Jackson, Amber. “ChatGPT turns one: How AI chatbot has changed the tech world.” Technology Magazine.
November 30, 2023. https://technologymagazine.com/articles/chatgpt-turns-one-how-ai-chatbot-has-changed-the-
tech-world.
4
Writers Guild of America. “What We Won.” Writers Guild of America, 2023.
https://www.wgacontract2023.org/the-campaign/what-we-won.
5
United States Copyright Office. “What is Copyright?” United States Copyright Office. n.d.
https://www.copyright.gov/what-is-copyright/#:~:text=originality%20and%20fixation-
,Original%20Works,and%20%E2%80%9Cmodicum%E2%80%9D%20of%20creativity.
6
Legal Information Institute. “17 U.S. Code § 106 - Exclusive rights in copyrighted works.” Cornell Law School.
n.d. https://www.law.cornell.edu/uscode/text/17/106.
7
University of Massachusetts Global. “Generative Artificial Intelligence (GAI) Resource Guide for Faculty.”
University of Massachusetts Global. n.d. https://umassglobal.libguides.com/artificial-intelligence
 17

by the United States Copyright Office on the grounds that a human author did not independently create
the work.
This paper explores Thaler v. Perlmutter, a case with the potential to uproot copyright laws and
greatly alter innovation in the sciences and arts. Thaler is currently being argued in the U.S. Court of
Appeals for the District of Columbia and may eventually reach the Supreme Court. Based on the facts of
the case, current regulations, and arguments, this piece will predict the case's outcome and the applicable
precedents it may set.

II. A HISTORY AND OVERVIEW OF THALER V. PERLMUTTER

Thaler originally filed a lawsuit against Shira Perlmutter, Register of Copyrights and Director of
the U.S. Copyright Office, soon after his copyright application for an art piece titled, “A Recent Entrance
to Paradise,” generated by the Creativity Machine, was denied in 2019. He claimed that the AI algorithm
behind the Creativity Machine authored the artworks, yet asserted he should be the true copyright owner
on the basis that he owned the machine and developed the algorithm. This refers to a “work-for-hire,”
which awards copyright to a third party rather than the creator. For example, if a corporation hires an
artist to design a logo, they would be granted a copyright instead of the artist.8 This was Thaler’s main
argument, but he notably admitted that “A Recent Entrance to Paradise” was completely made
autonomously, which commentators later address. The case’s legal issue asks whether or not work created
solely by an AI system could be copyrightable based on the Copyright Office’s definition of an “author.”9
Ultimately, the question before the court was whether a work-for-hire is eligible for copyright protections
when the true author is a GAI algorithm.

i. The U.S. District Court for the District of Columbia

After the initial copyright application was denied, appealed, and rejected again, Thaler was
brought to the United States District Court for the District of Columbia. In court, Thaler argued the
rejections violated the Administrative Procedure Act (APA) and that the court should be required to
invalidate the government action. The Administrative Procedure Act was created to combat the abuse of
administrative power and ensure that administered regulations were fair and reasonable.10 It condemns
any act from a government agency that is “arbitrary, capricious, an abuse of discretion, or otherwise not
per the law.11 Therefore, Thaler claims that the USCO decided to reject the copyright in question in an
unlawful, non-standardized manner and that it is now up to the court to void the decision since they have
exhausted the USCO appeals process. According to the APA, the defendants, namely Perlmutter and the
USCO, denied this claim but were burdened with defending their reasoning behind rejecting Thaler’s
copyright application. The court can only review an agency’s actions based on the reasons it gave for the
action, so a strong defense is imperative for Perlmutter.
Both parties additionally filed a motion for a summary judgment, which a court should grant if
“there is no genuine issue of material fact” between the parties.12 A summary judgment motion is
beneficial to file, as it can avoid a jury trial by affirming that there is no factual dispute between the
parties that would require a trial. For Thaler, if summary judgment is granted in his favor, it would open
up the potential for AI-generated art to be eligible for copyright. On the other hand, if the court grants
summary judgment for Perlmutter et al., it would affirm the USCO’s decision to deny copyright
applications relating to AI-generated art. The district court decided Thaler in August 2023. In their
discussion, the court noted the only genuine legal question is whether the USCO acted arbitrarily or

8
Legal Information Institute. “work made for hire.” Cornell Law School. n.d.
https://www.law.cornell.edu/wex/work_made_for_hire.
9
Mathur, Atreya. “Case review: Thaler v. Perlmutter (2023).” Center for Art Law. December 11, 2023.
https://itsartlaw.org/2023/12/11/case-summary-and-review-thaler-v-perlmutter/.
10
Thaler v. Perlmutter, Civil Action No. 22-1564 (BAH), 2023 U.S. Dist. LEXIS 145823 (D.D.C. Aug. 18, 2023).
11
Legal information Institute. “5 U.S. Code § 706 - Scope of review.” Cornell Law School. n.d.
12
DRS Law. Understanding motions for summary judgment. DRS Law. n.d.
 18

capriciously in making their decision.13 It declared the copyright in question is not protected by law due to
being created by Thaler’s autonomous system rather than Thaler himself; therefore, the USCO did not err
in their judgment and acted properly in making their decision, with no evidence to prove otherwise. As
the court states, Thaler complicated the case by basing much of his argument on legal theories to connect
the artwork to him as an owner such as the work-for-hire doctrine. However, these cannot be considered
unless it is determined there is a valid copyright with human authorship. In his argument, Thaler notes the
flexibility of copyright and how it is designed to adapt to new technology. He cites Burrow-Giles
Lithographic Company v. Sarony (1884), a case the Supreme Court decided that extended valid
copyrights to photography.14 However, one consistent element is the presence of human creativity in these
adaptations; the court believes there is no inherent human control or creativity present in the Creativity
Machine compared to photography, where a photographer maneuvers a camera and subjects to capture a
desired shot. One of the necessary components of copyright is human authorship and without it, a work is
not sufficient to be registered.
Because of this, the court denied the plaintiff’s motion for summary judgment and granted the
defendant’s cross-motion for summary judgment.

ii. The U.S. Court of Appeals for the D.C. Circuit

Thaler appealed the district court’s decision to the U.S. Court of Appeals for the D.C. Circuit,
which is pending a decision.15 In his reply brief, Thaler raised numerous flaws in the USCO’s reasoning
for denying copyright protection to a non-human work. He stated that registrations for works authored by
corporations or the U.S. Government are not required to attribute it to any human contribution or human
author. According to Thaler, AI algorithms are analogous to this and should receive similar treatment.
Thaler also raised alternate theories in his initial copyright application such as the work-for-hire theory
and a presumption that he is the only plausible author because no other human could claim ownership. If
the Creativity Machine authored the work, Thaler is the “undisputed human originator of the work.”16 The
USCO did not acknowledge these theories, to which Thaler alleges them to be acting arbitrarily and
capriciously in a way that violates the APA.
Oral arguments were conducted on September 19, 2024, and, like the district court judge, the
three-judge panel remained dubious of Thaler’s theories. Circuit Judge Patricia A. Millett and the district
court noted that in APA cases, both courts act as appellate courts. This means they can only evaluate the
USCO’s reasoning for denying the copyright and any complaints brought up in Thaler’s appeal filings.
Thaler cannot introduce new information if it is not included in his briefs unless there are extraordinary
circumstances, which are not present here. The lower court ruled that Thaler had forfeited his right to use
these arguments in court because he failed to address them in his district court filing. Millet recognized
that Thaler did not challenge this ruling, and, as such, Thaler’s case seemed to have been gutted before
judges could consider the issue at hand.
With regards to Thaler’s theory that he owned “A Recent Entrance to Paradise” because he
created the AI that generated it, the court separated ownership and authorship. In the oral arguments,
Thaler argued that possession is a basis for ownership and Thaler owned the image by being the first to
possess it. On the respondent side, Perlmutter maintained that human elements were necessary for
authorship on the basis that humans can own property while machines cannot.17 Perlmutter raised

13
Thaler v. Perlmutter, Civil Action No. 22-1564
14
Burrow-Giles Lithographic Company v. Sarony, 111 U.S. 53 (1884)
15
Court Listener. Stephen Thaler v. Shira Perlmutter (23-5233) Court of Appeals for the D.C. Circuit. Free.Law.
October 14, 2024.
https://www.courtlistener.com/docket/67892225/stephen-thaler-v-shira-perlmutter/
16
Abbott, Ryan. “Thaler v. Perlmutter (23-5233) Appelant’s reply brief.” Brown Neri Smith & Khan LLP. April,
10, 2024. https://artificialinventor.com/wp-content/uploads/2024/04/Thaler-v-Perlmutter-Reply-Brief.pdf
17
Jahner, Kyle & Soni, Aruni. “AI art copyright stays doubtful after Appeals Court argument.” Bloomberg Law.
September 19, 2024. https://news.bloomberglaw.com/ip-law/ai-art-copyright-remains-doubtful-after-appeals-court-
argument
 19

concerns about the implications of the ruling in favor of Thaler, suggesting that Congress would need to
revise intellectual property laws in a way the court alone cannot. The nuances of AI go beyond a single
case or court ruling, as Perlmutter states.
Intellectual property lawyers and case commentators such as Paul Llewellyn of Arnold & Porter
Kaye Scholer LLP believe the court is seemingly avoiding the ambiguity of AI copyright. Llewellyn
argues that the court is highlighting procedural flaws while neglecting AI’s rapid growth and emergence
in the creative world. If the appeals court rules in favor of the USCO, it would leave questions regarding
the degree of creativity required for AI copyright protection. Llewellyn states, “The appellate court seems
to be reluctant to reach beyond the record in the case and address some really interesting and intriguing
questions that weren’t fleshed out [at the district court].”18 Attorneys and case reporters generally believe
the court will rule in favor of the USCO, but the ruling is still to be determined as of November 19, 2024.

III. RELEVANT INTELLECTUAL PROPERTY AND ARTIFICIAL INTELLIGENCE LAW

Cases such as Thaler highlight potential gaps in copyright law, which has not yet fully caught up
to advancements in AI technology. However, these cases also highlight the original purpose of copyright
law and why legislation has not yet evolved to reflect changes in the creative market. A foundation of
Thaler’s argument is that the Copyright Act of 1976 does not address the requirements of being an
“author” nor does it state an author must be human. This is accurate, but 17 U.S. Code § 101 somewhat
addresses authors. It states that for a work to be considered “fixed in a tangible medium of expression” —
which is crucial for obtaining a copyright—it must be expressed “by or under the authority of the
author.”19 Though it addresses whether the author must be in control of producing the work, an AI could
“control” what it generates based on machine learning and user prompts. Therefore, much of this aspect
of the law is up to the courts’ interpretations. Historically, courts explicitly constrict who or what is an
“author” to humans. Naruto v. Slater (2018) is one example case that reached the U.S. Court of Appeals
for the 9th Circuit. It discusses the legalities of Naruto, a monkey, being subject to copyright authorship
for several photographs it took of itself with wildlife photographer David Slater’s camera. Naruto’s
pictures fit the definition expressed in 17 U.S. Code § 101, as it was in control of the camera and the work
was expressed “by or under the authority of the author.” However, the 9th Circuit Court of Appeals ruled
that Naruto lacked statutory standing to sue Slater because The Copyright Act does not permit animals
from holding authorship.20 There was no evidence that Naruto was economically harmed if Slater used or
communicated the photographs by any means.
The Thaler court was no different. The Oxford English Dictionary and Merriam-Webster
Unabridged Dictionary influenced the district court’s definition of author. In their opinion, they stated that
an author refers to “one that is the source of some form of intellectual or creative work” and “[t]he creator
of an artistic work; a painter, photographer, filmmaker, etc.”21 Additionally, an author must possess the
“capacity for intellectual, creative, or artistic labor.” Considering this and the purpose of the Copyright
Act of 1976, the court said an originator must be human.22 From its inception, copyright laws have aimed
to foster innovation in the fields of science and the arts. The United States Constitution Article I section 8,
clause 8 states, “The Congress shall have Power ... To promote the Progress of Science and useful Arts,
by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings
and Discoveries.”23 To do so, copyright laws provide an incentive to those who create by rewarding
owners with certain property rights. 17 U.S. Code § 106 outlines the exclusive rights copyright holders
18
Jahner, Kyle & Soni, Aruni. “AI art appeal’s procedural flaws put broader ruling in doubt.” Bloomberg Law
September 23, 2024. https://news.bloomberglaw.com/ip-law/ai-art-copyright-remains-doubtful-after-appeals-court-
argument
19
Definitions. 17 U.S.C. § 101
20
Naruto v. Slater, No. 16-15469 (9th Cir. 2018)
21
Thaler v. Perlmutter, Civil Action No. 22-1564
22
Thaler v. Perlmutter, Civil Action No. 22-1564
23
United States Patent and Trademark Office. “Copyright basics.” United States Patent and Trademark Office. n.d.
https://www.uspto.gov/ip-policy/copyright-policy/copyright-basics
 20

are entitled to, which include the right to: reproduce the work, create derivative works, distribute copies
of the work, and publicly perform or display the work if applicable.24 Framers drafted these rights with
the prediction that authors would want to protect their works against theft and receive some sort of
compensation for their creations. To do so, authors would spread their work to the public, which can
stimulate the creative economy, promote public welfare, and encourage more transformation in the useful
sciences and arts.25 Many courts such as the courts in Naruto and Thaler likely believe that non-human
creators—namely animals and artificial intelligence algorithms—do not respond to incentives in a way
that upholds the purpose of copyrights. In other words, these authors are unaware of or indifferent to
monetary rewards for innovating. This relationship between the laws and authors seems to be a large
reason why courts are hesitant to grant exclusive rights of copyright to a work created entirely by an AI.
Thaler’s work-for-hire theory is intriguing, as it reduces this tension by directing the creator’s
incentive toward Thaler himself. If stimulating the useful sciences and arts is the ultimate goal of
copyright law, Thaler seems to be achieving both. His algorithm, an innovative technology, is creating
unique artwork that arguably promotes public welfare, as seen in “A Recent Entrance to Paradise.” There
is also an incentive for other humans to develop algorithms and improve current technology. However,
the key factor to consider is the novelty of GAI, particularly how it has not yet exhausted its potential
uses. By giving Thaler exclusive rights for the AI-generated art, it limits any creator from creating any art
similar to “A Recent Entrance to Paradise,” which establishes a monopoly for Thaler and may
disincentivize authors from exploring GAI’s potential uses; rapid research that is happening right now on
the subject may plateau. It is important to consider how easy it may be to copy Thaler’s work since it was
likely generated through ordinary text prompts. Authors could replicate the art with a different text
prompt, which evokes questions about whether the text prompt matters when determining potential
copyright infringement. Though the work-for-hire theory seems sound, GAI’s nuances are still raising
more questions than answers.
This article has not addressed a critical aspect of AI thus far: AI has existed and been prevalent
for decades- why only in the past few years has it started to generate legal concerns? Over the past
decade, society has seen rapid advancements in LLMs and is becoming aware of them with ChatGPT now
established as a household name. GAI is integrating into entire industries such as entertainment and
healthcare, which was never considered a decade ago despite these models existing in systems such as
Apple’s Siri.26 Economic research predicts that AI will grow at an annual rate of 36.6 percent over the
next six years, and by 2030, AI representation in the United States GDP will increase by an estimated 21
percent on net.27 This establishment of AI as a major player in the country’s economy and universal
industries like healthcare proves the contemporary ChatGPT era to be the Gilded Age of AI. Though
society is rapidly gaining wealth and prosperity through technological and creative innovation,
researchers worry this will come with a widening wealth gap and economic inequality that favors large
corporations and the wealthiest individuals. Job displacements, concentration of power in a few AI
companies, and dependence on AI are all risks noted to be aware of.28 Great economic and technological
change is often accompanied by political and legal unrest,29 so it is clear that history is repeating itself in
the age of AI.

24
Exclusive rights in copyrighted works. 17 U.S.C. § 106
25
United States Patent and Trademark Office. “Copyright basics.”
26
iDeta Groupe Septeo. “How artificial intelligence has evolved over the years.” iDeta Groupe Septeo. n.d.
https://www.ideta.io/blog-posts-english/how-artificial-intelligence-has-evolved-over-the-
years#:~:text=The%20evolution%20of%20AI%20has,%2C%20and%20voice%2Dactivated%20assistants.
27
Haan, Katherine. & Holznienkemper, Lauren. “22 Top AI Statistics And Trends In 2024.” October 16, 2024.
https://www.forbes.com/advisor/business/ai-statistics/#top_ai_statistics_section
28
Tobin, James. “Artificial intelligence: Development, risks and regulation.” UK Parliment House of Lords Library.
July 18, 2023. https://lordslibrary.parliament.uk/artificial-intelligence-development-risks-and-
regulation/#:~:text=Dependence%20on%20AI%2C%20including%20the,for%20the%20future%20of%20humanity.
29
Newport Mansions. “Newport and the Gilded Age.” Newport Mansions. n.d.
https://www.newportmansions.org/gilded-age/
 21

IV. CASE OUTCOME PREDICTIONS AND IMPLICATIONS

Thaler has the potential to be a monumental case in the world of AI-generated art. However, I do
not believe courts are ready to rule in Thaler's favor at this time, as they remain steadfast in the view that
copyright laws are designed to favor human authorship. The U.S. Court of Appeals for the D.C. Circuit
will likely rule in favor of Perlmutter, expressing that the USCO was right in denying Thaler’s copyright
application for “A Recent Entrance to Paradise.” Thaler will almost certainly appeal due to the procedural
flaws the appellate court pointed out. I believe Thaler shares a sentiment similar to that of oral argument
commentators and will argue that the judges did not flesh out the issue at hand. He may petition for a writ
of certiorari to the Supreme Court; if four Supreme Court judges grant the writ, they agree to hear the case
and Thaler will be heard before the Supreme Court.30 It is uncertain whether the Supreme Court will
decide to take the case if it becomes applicable. On one hand, they may want to address the question of
whether AI-generated art should be subject to copyright and clear up any legal ambiguities for the time
being. However, they may agree with the U.S. District Court for the District of Columbia’s granted
summary judgment ruling for Perlmutter and assert the USCO did not err in its judgment without the need
for a trial. If the case is argued in the Supreme Court, justices will likely reach similar conclusions to the
district court.
By granting a copyright to Thaler, the implications would be immense. Thaler’s copyright has the
potential to encourage corporate monopolies to form, which would discourage technological or creative
growth. Due to AI’s current and eventual impact on the economy, it is risky to grant copyrights, as it sets
a precedent that allows large conglomerates to seek out copyrights for works ordinary text prompts
generate. These companies can preemptively create a content farm by generating a large amount of art
and applying for copyrights with their vast resources. This could result in a concentration of power among
major corporations, effectively rendering compensation for creativity improbable if not impossible. Many
text prompts would be in the control of a few entities, making infringement easy and common. In turn,
artists may be discouraged from exploring AI-generated art due to the potential for using similar prompts
and being accused of infringement as a result. Human-created art that resembles AI images such as “A
Recent Entry to Paradise” could also be subject to infringement, so allowing copyrights to works with an
AI author may put human artists out of work. However, suppose the court chooses to rule in favor of
Perlmutter. In that case, it continues to leave questions of how much human input is necessary to allow
AI-generated works to be entitled to copyright and if the text prompt is considered part of the copyright.
Copyright laws allow individuals to replicate ideas but not the expression of those ideas. In other words,
an ordinary prompt is an idea, but the work based on the prompt is an expression of the idea. It will be
interesting to monitor the extent to which text will play a role in future AI copyright disputes.
Until Thaler is decided, ambiguities surrounding AI art and copyrights remain.

30
Legal Information Institute. “writ of certiorari.” Cornell Law School. n.d.
https://www.law.cornell.edu/wex/writ_of_certiorari
 22

BARRIERS TO THE BALLOT:

AN ANALYSIS OF SHELBY COUNTY V. HOLDER AND ITS CONSEQUENCES
Ben Denker

I. INTRODUCTION
Since the 2020 election, Donald Trump’s repeated claims of election fraud have sown widespread
doubt and concern about the integrity of U.S. elections. Indeed, polls show that up to a third of Americans
believe President Biden was illegitimately elected.1 These fears have led to an increase in support for
voter ID requirements. Five states have enacted laws requesting some form of voter ID on election day:
Ohio, Nebraska, Missouri, Arkansas, and North Carolina, bringing the total to 36 states. Different states
have different forms of accepted IDs—Ohio only accepts driver's licenses or passports, while other states
like North Carolina also accept Student IDs and military cards.2 This increase in voter ID requirements
post-2020 does not exist in a vacuum. Indeed, attempts to adjust election procedures in the name of
election integrity have a deeper history necessary to contextualize recent efforts.
The Civil Rights movement in the mid-20th century helped mobilize the general public and
politicians against Jim Crow laws, resulting in monumental legislation for voting rights. Among the most
important legislation in ending the decades-long conquest for enfranchisement of black voters was the
Voting Rights Act of 1965. Signed into law by President Lyndon B. Johnson, the legislation prohibited
discriminatory voting restrictions and required states to gain federal approval before changing voting
laws.3
This paper will focus on the 21st-century interpretations of Sections 4 and 5 of the Voting Rights
Act of 1965. Section 5 stipulates that certain states and local governments must obtain federal
preclearance—when the United States District Court for the District of Columbia or the Attorney General
subjects voting alterations to review—before implementing changes to voting laws or practices.4 Section
4 outlined the measures for determining which select jurisdictions require preclearance based on the
jurisdiction’s history of racial discrimination in voting.5 Before the Shelby County v. Holder (2013)
decision Arizona, Alaska, Texas, Louisiana, Alabama, Mississippi, Georgia, and South Carolina and
select jurisdictions in various other states were mandated to receive preclearance under Section 4.
Specifically, this paper will examine the statutes through the consequences of Shelby County v.
Holder, a landmark Supreme Court decision. In a 5-4 decision along ideological lines, the Court held that
Section 4 of the Voter Rights Act of 1964 was unconstitutional. The opinion did not explicitly rule
Section 5 as unconstitutional, but without the coverage formula stipulated in Section 4, Section 5 has no
coverage and therefore cannot subject any state or jurisdiction to preclearance. As a result, states
previously subject to preclearance could enact voting law changes without the approval of the District
Court of the District of Columbia or the U.S. Attorney General.6 Although the decision only directly
impacted states previously subject to preclearance, the decision has emboldened state lawmakers
nationwide to enact stricter voting laws which will be examined in this paper.
This paper will also analyze perhaps the most well-known consequence of Shelby County v.
Holder—Veasey v. Abbott (2016). Although this ruling prohibited Texas from enacting more strict voter
identification laws, several ongoing cases pose a risk of disenfranchisement. Ultimately, the analysis of
the judges’ decision-making in Veasey v. Abbott will inform the examination of one important ongoing
1
Pengelly, Martin. “More than a Third of US Adults Say Biden’s 2020 Victory Was Not Legitimate.” The
Guardian, January 2, 2024. https://www.theguardian.com/us-news/2024/jan/02/poll-biden-2020-election-
illegitimate.
2
North Carolina General Assembly. 2017. Senate Bill 824: An Act to Implement the Voter Identification
Constitutional Amendment. November 5, 2024.
https://www.ncleg.net/Sessions/2017/Bills/Senate/HTML/S824v7.html.
3
52 U.S. Code § 10101. https://uscode.house.gov/view.xhtml?req=(title:52%20section:10101%20edition:prelim)
4
52 U.S. Code § 10101.
5
52 U.S. Code § 10101.
6
Shelby County v. Holder, 570 U. S. 529 (2013)
 23

case in voting rights law—Berger v. North Carolina State Conference of the NAACP (2022). This lens
will inform the argument of this paper: Shelby County v. Holder severely undermined protections for
voters of color by enabling discriminatory laws to take hold, hampering equal access to voting.

II. SHELBY COUNTY v. HOLDER (2013)

i. The Case
Shelby County, a jurisdiction within the covered state of Alabama, challenged the
constitutionality of Sections 4(b) and 5 of the Voting Rights Act. Both the District Court for D.C. and the
Court of Appeals for the D.C. Circuit upheld the law, reasoning that the coverage formula adopted by
Congress in 2006 was consistent with the need to protect the voting rights of minority voters.7 After the
affirming appellate court decision, Shelby County appealed to the Supreme Court.
Chief Justice John Roberts’ majority opinion delivered a transformational interpretation of
Section 4 of the Voting Rights Act of 1964, reinforcing the principles of federalism. This decision marked
a stark contrast to the Court’s precedent. Before the ruling, the Court historically upheld preclearance as
an enforcement mechanism for the Voting Rights Act. In South Carolina v. Katzenbach, for instance, the
Court held that preclearance requirements were constitutional under Section 2 of the 15th Amendment,
which reads that Congress “shall have power to enforce this article by appropriate legislation.”8 In other
words, preclearance requirements enabled Congress to properly enforce the Voting Rights Act and its
intention to remedy race-based voter restrictions. Chief Justice Roberts, citing South Carolina v.
Katzenbach, reasoned that the “insidious and pervasive evil” of voting restrictions that necessitated
federal oversight and preclearance at the time of the decision “no longer characterize” the present voting
landscape.9 By doing so, the Court set a new standard for future cases by emphasizing that laws
addressing past injustices must reflect “current conditions.” Future cases challenging voting regulations
now require contemporary evidence of discrimination to justify federal intervention, marking a shift
toward federalist principles in voting rights law.

ii. The Consequences of Shelby County v. Holder

The Supreme Court’s ruling in Shelby County rested on the belief that the nation had changed
since the Voting Rights Act was passed, and the formula used to subject certain states to preclearance was
outdated. By invalidating Section 4(b), the Court rendered Section 5’s enforcement power obsolete,
shifting future decisions about voting restrictions to lower courts, which now must assess these laws on a
case-by-case basis. The lack of federal oversight motivated eager state legislatures to enact new voting
laws. As a result, there have been 77 state-level challenges to voting rights laws in the 9 states previously
covered under preclearance since the Shelby County decision.10 The subsequent details will detail the
changes to election laws as a whole, beyond just voter ID, to ensure a comprehensive understanding of
the consequences of Shelby County.
In Georgia, one of the 9 states previously subject to preclearance, voter restrictions have tightened
since the ruling. In 2021, the Republican-majority state legislature passed Senate Bill 202 which mandates
ID requirements for mail-in voting.11 North Carolina enacted similar restrictions, requiring in-person
voters to present voter ID and mail-in voters to include a copy of their photo ID in their mail-in ballot

7
Shelby County v. Holder, 133 S. Ct. 2612. https://www.oyez.org/cases/2012/12-96.
8
Shelby, 570 U. S. 529.
9
Shelby, 570 U. S. 529.
10
Cassidy, Christina A., and Ayanna Alexander. “Supreme Court Tossed out Heart of Voting Rights Act a Decade
Ago, Prompting Wave of New Voting Rules.” AP News, June 21, 2023. https://apnews.com/article/voting-rights-
act-supreme-court-black-voters-6f840911e360c44fd2e4947cc743baa2.
11
Cassidy, Christina A. “GOP Targets Ballot Drop Boxes in Georgia, Florida, Elsewhere.” AP News, April 23,
2021. https://apnews.com/article/donald-trump-georgia-elections-coronavirus-pandemic-gubernatorial-elections-
c083f5e0af7855c9dbb5a1659840c4a9.
 24

envelope.12 In addition to citizenship and voter ID laws, states also have altered the processes for
returning ballots. The previously mentioned Senate Bill 202 in Georgia reduces the number of ballot
drop-boxes in metro Atlanta, a predominantly Democratic voting block.13
It is important to note that these changes have come with their share of legal challenges. With no
preclearance coverage, the federal government and outside voter rights groups rely on courts to identify
potentially discriminatory voting legislation.14 On this front, there has been some success. A federal judge
in Georgia notably struck down part of Georgia Senate Bill 202, ruling that provisions that blocked
providing voters waiting in lines with food and water and requiring voters to provide their birth date in
absentee ballot envelopes.15 However, in other cases, courts have ruled to keep restrictive voting laws in
place. For instance, in August 2024, the Supreme Court granted a Republican National Committee request
to reinstate Arizona’s proof of citizenship law along ideological lines.16 Thus, precedent suggests that
courts may apply ideologically-based standards in evaluating restrictive voting legislation without federal
oversight, leaving the path forward for safeguarding voting rights dependent on ideological interpretation.

III. VEASEY v. ABBOTT (2018)

i. The Case
With the implementation of Senate Bill 14 (SB 14), Texas began requiring voters to present one
of six forms of identification to vote, including a Texas driver’s license, a U.S. citizenship certificate, or a
U.S. passport, among others.17 Independent voter rights groups quickly assessed the law as the most
restrictive voter ID law in the country, estimating that over 600,000 registered voters in Texas did not
have an approved ID under the law.18 Before reaching the Court of Appeals for the Fifth Circuit, a federal
district court in the Southern District of Texas held that: 1. SB 14 creates an unconstitutional burden on
the right to vote and has an impermissible discriminatory effect against Hispanics and African Americans,
and 2. was imposed with an unconstitutional discriminatory purpose.19
The state appealed this final judgment to the Court of Appeals for the Fifth Circuit. In its ruling,
the Court addressed two important legal issues in the post-Shelby legal arena: Texas voter ID law SB 14,
violated Section 2 of the Voting Rights Act of 1964 and whether there was discriminatory intent in the
law.20 The Court remanded the latter issue to the District Court, reasoning that the evidence of
discriminatory intent should be re-evaluated.21 For the former issue, the Court reasoned that the law
violated the Voting Rights Act of 1964, focusing on the significant and disparate burdens the law imposed
on minority voters.22 Disparate impact refers to a practice that disproportionately affects one group
relative to another even if the formal laws are neutral.23 In this case, although Texas’ SB 14 requirement

12
Alexander, Ayanna, Gary D. Robertson, and Christina A. Cassidy. “North Carolina Is among GOP States to
Change Its Voting Rules. the Primary Will Be a Test.” AP News, March 2, 2024. https://apnews.com/article/voting-
laws-voter-id-republicans-north-carolina-1c2d5b033620244a7ea5012adf669b30.
13
Cassidy, “GOP Targets Ballot Drop Boxes.”
14
Cassidy and Alexander, “Supreme Court Tossed out Heart of Voting Rights Act”
15
“LDF’s Lawsuit Challenging Georgia’s Voter Suppression Law.” Legal Defense Fund, December 8, 2023.
https://www.naacpldf.org/naacp-publications/ldf-blog/important-facts-about-ldfs-lawsuit-challenging-georgias-
voter-suppression-bill/.
16
Howe, Amy. “Justices Allow Arizona to Enforce Proof-of-Citizenship Law for 2024 Voter Registration.”
SCOTUSblog, August 22, 2024.
17
S.B. 14, 88th Legislature (2011) (Tex.).
18
“Texas NAACP v. Steen (Consolidated with Veasey v. Abbott).” Brennan Center for Justice, September 21, 2018.
https://www.brennancenter.org/our-work/court-cases/texas-naacp-v-steen-consolidated-veasey-v-abbott.
19
Veasey v. Abbott, 197 L. Ed. 2d 78
20
Veasey v. Abbott, 137 S. Ct. 612 (2017)
21
Veasey, 137 S. Ct. 612.
22
Veasey, 137 S. Ct. 612.
23
U.S. Department of Justice, "Title VI Legal Manual," Civil Rights Division, November 5, 2024,
https://www.justice.gov/crt/fcs/T6Manual7.
 25

for voter ID is uniform across groups, it was clear that due to the history of discrimination against African
Americans and its resulting systemic socioeconomic inequalities, African Americans had fewer
opportunities to participate in the political process because of the disproportionate difficulty of voting
under the proposed law.24 This focus on the SB 14’s immediate disparate effects on voting accessibility is
what drove the Fifth Circuit to uphold Shelby’s “current conditions” principle that voting laws must be
assessed based on present burdens on affected groups.

ii. The Implications of Veasey for Berger v. North Carolina State Conference of the NAACP
Although many voting rights cases rely on ideological interpretations of what constitutes
acceptable government intervention in voting rights laws, one consistent legal standard is disparate
impact. This standard informed the majority opinion in Veasey v. Abbott. The Court detailed that to
establish disparate impact under the Voting Rights Act, it is not necessary to prove discriminatory intent
behind a law.25 Instead, the focus is on the law’s effects. Specifically, SB 14’s voter ID requirement was
facially neutral, meaning it applied equally to all voters. There was no discriminatory intent in this case.
However, the Court reasoned that due to a long history of racial discrimination in Texas, African
Americans and other minority voters were less likely to possess the types of identification required by SB
14. The Texas government had presented insufficient evidence to demonstrate a widespread voter fraud
issue necessitating such strict ID requirements.26 In other words, the burdens SB 14 placed on minority
voters were not justified by a significant state interest.
In the ongoing case Berger v. North Carolina State Conference of the NAACP, a district court is
expected to issue its ruling on whether a North Carolina voter ID law violates Section 2 of the Voting
Rights Act and the 14th and 15th Amendments of the U.S. Constitution. The case previously reached the
Supreme Court on a separate issue—whether state officials can intervene in a case regarding the
constitutionality of state laws. The North Carolina Attorney General, a Democrat, had long argued for the
defendant, the state. Republican state officials, however, believed his defense was inadequate and
requested to intervene and advocate for the voter ID law. The Supreme Court permitted the intervention,
remanding the constitutional issue back to a district court.
Based on the precedent outlined in Veasey v. Abbott, the Court may rule in favor of the plaintiff,
North Carolina State Conference of the NAACP. Focusing on the plaintiffs’ disparate impact argument,
they contend that the North Carolina voter ID law facilitates discriminatory effects regardless of intent.27
They outline four ways this occurs including the most striking piece of evidence: a disparity in ID
possession by minority voters.28 Black voters are twice as likely than white voters to lack a valid form of
photo ID under the new law. Further, Latino voters are nearly three times more likely to lack qualifying
ID than white voters.29 Veasey v. Abbott outlined the standard used to evaluate whether this evidence
constitutes a disparate burden. The approach involves two requirements: the challenged law must first
“[impose] a discriminatory burden on members of a protected class” such that “members of the protected
class ‘have less opportunity than other members of the electorate to participate in the political process . .
.’”; and second, the discriminatory burden must be in part “caused by or linked to ‘historical conditions’
that have or currently produce discrimination against members of the protected class.”30 The disparities in
qualifying ID certainly fulfill the first standard, as minority voters have fewer opportunities to vote under
the new law. Furthermore, North Carolina has a detailed history of racial discrimination stretching from
slavery, through Jim Crow laws, and persisting in the present through systemic differences in
24
Veasey, 137 S. Ct. 612.
25
Veasey, 137 S. Ct. 612.
26
Veasey, 137 S. Ct. 612.
27
NAACP Plaintiffs’ Trial Brief, North Carolina State Conference of the NAACP v. Alan Hirsch, No. 1:18-cv-
01034-LCB-LPA (M.D.N.C., April 16, 2024), https://www.democracydocket.com/wp-
content/uploads/2021/06/270-2024-04-16-NAACP-plaintiffs-trial-brief.pdf.
28
NAACP Plaintiffs’ Trial Brief, N.C. State Conf. of the NAACP v. Alan Hirsch.
29
NAACP Plaintiffs’ Trial Brief, N.C. State Conf. of the NAACP v. Alan Hirsch.
30
NAACP Plaintiffs’ Trial Brief, N.C. State Conf. of the NAACP v. Alan Hirsch.
 26

socioeconomic and education status.31 These conditions facilitate the discrimination necessary to fulfill
the second criterion. Just as Shelby held that voting regulations/challenges must be supported by
contemporary evidence of discrimination, the evidence of disproportionate ID possession among Black
and Latino voters provides a concrete justification for challenging the law under the Voting Rights Act.

IV. CONCLUSION
The Supreme Court’s ruling in Shelby County v. Holder effectively dismantled preclearance,
enabling states to pass new voting restrictions without federal approval. This shift has led to an increase in
voter ID laws and other restrictive voting measures, often justified in the name of election integrity, but
disproportionately affecting minority voters, as demonstrated in cases like Veasey v. Abbott and Berger v.
North Carolina State Conference of the NAACP. The Court’s reliance on disparate impact analysis in
Veasey v. Abbott underscores the importance of evaluating the effects of voting laws on marginalized
communities. Even without explicit discriminatory intent, these laws can impose significant barriers for
minority voters due to systemic inequalities rooted in historical discrimination. This precedent will shape
future legal battles, such as Berger v. North Carolina State Conference of the NAACP, where an
upcoming district court decision will shape the results of the 2026 and 2028 elections.
In evaluating future issues, the legacy of Shelby County v. Holder remains critical. Section 5 of
the Voting Rights Act of 1964, deemed obsolete under Shelby, mandated preclearance for several states
and jurisdictions with a rampant history of voter discrimination. Section 5, which enabled this federal
oversight, is unique among other laws protecting against discrimination. In sections of Title VII32 and the
Americans with Disabilities Act,33 the burden of proof rests on the affected individuals to bring a lawsuit
to challenge a potentially discriminatory law—a costly and time-consuming process. Furthermore, a
potentially discriminatory law can remain in effect until a ruling is issued. Under Section 5, however,
jurisdictions used to have the burden of proving that a new law was not discriminatory. Shelby County v.
Holder has fundamentally altered the voting rights law landscape. It significantly weakened protections
for voters of color, shifting the costly and time-consuming burden of defending voting rights to citizens
and advocacy groups. In a post-Shelby landscape, it is easier for discriminatory laws to take hold and
harder to safeguard equal access to the ballot box.

31
Triplett, Nicholas P., and James E. Ford. Rep. E(Race)Ing Inequities. Center for Racial Equity in Education, 2019.
https://www.ednc.org/wp-content/uploads/2019/08/EducationNC_Eraceing-Inequities.pdf.
32
52 U.S. Code § 10101.
33
52 U.S. Code § 10101.
 27

REGULATING HATE SPEECH:

A MORE CONSISTENT APPLICATION OF THE FIRST AMENDMENT
Max Ehrlich

I. INTRODUCTION
“The First Amendment was never intended to protect an individual who burns a cross in the
middle of the night in the fenced yard of an African-American family's home,” declared Hennepin County
attorney Tom Foley during the oral argument for R.A.V. v. Saint Paul.1 In a 9-0 decision, the Supreme
Court disagreed. The majority explained in their decision that the government cannot proscribe speech
based on viewpoint, no matter if it falls within a broader unprotected category of speech. Even if the St.
Paul statute at issue only proscribed hate speech that fell into the category of fighting words, its inclusion
of only fighting words espousing certain views made it unconstitutional. The case set the precedent that
viewpoint-based restrictions on speech are facially invalid, even if they regulate a category of speech that
would normally not be protected.2
This article’s analysis will begin in Part II with an examination of the majority’s argument. Then,
Part III will explore the main concurring opinions and their use of the traditional categorical approach.
Next, Part IV will delve into the concept of content-based under-inclusion, central to understanding the
tension between the majority and dissent in RAV v. Saint Paul. Part V will argue that hate speech should
be considered its own category of unprotected speech given the Court’s reasoning in Roth, Chaplinsky,
and Wisconsin v. Mitchell. Finally, Part VI will consolidate these arguments into a two-pronged test for
determining whether a hate speech regulation is valid.

II. JUSTICE SCALIA’S MAJORITY OPINION AND VIEWPOINT DISCRIMINATION

Justice Scalia’s majority opinion, at its core, argues that a regulation of speech which
discriminates against certain viewpoints is unconstitutional regardless of any other features of the speech.
Even if the statute only regulates fighting words, which would be proscribable without a viewpoint
restriction, Scalia asserts that it does not matter. A statement’s categorization as fighting words does not
make it “entirely invisible to the constitution.”3 The bottom line is that the speech’s proscribability does
not simply depend on the speech’s content, but also depends on the government’s intent behind making
the regulation. If the government intended to proscribe a particular viewpoint, that brings the regulation
back under constitutional scrutiny, regardless of whether the speech belongs to an unprotected category.

i. Government Intent and Protection of Speech

Scalia justifies this view with examples of other cases where the government can regulate speech
in one way but not in another. For instance, he cites that laws can regulate the burning of an American
flag with an ordinance against outdoor fires but not with an ordinance specifically targeting actions
dishonoring the flag.4 Similarly, time, place, or manner restrictions can regulate speech that the
government cannot based on aspects of its content.5 However, in using this argument, Scalia explicitly
assumes a major premise. He writes “just as the power to proscribe particular speech on the basis of a
non-content element (e.g., noise) does not entail the power to proscribe the same speech on the basis of a
content element; so also, the power to proscribe it on the basis of one content element (e.g., obscenity)
does not entail the power to proscribe it on the basis of other content elements.”6

1
R.A.V v. City of Saint Paul, Docket No. 90-7675, 505 U.S. 377 (U.S. Supreme Court, Dec. 4, 1991, Oral
Argument at 00:25:43-00:25:55).
2
R.A.V. v. City of Saint Paul, Minnesota, 505 U.S. 377 (1992).
3
Ibid.
4
R.A.V. v. City of Saint Paul, Minnesota; Texas v. Johnson, 491 U.S. 397 (1989).
5
R.A.V. v. City of Saint Paul, Minnesota; Ward v. Rock Against Racism 491 U.S. 781 (1989).
6
R.A.V. v. City of Saint Paul, Minnesota.
 28

Scalia is correct that the power to regulate speech’s non-content elements does not confer the
power to regulate the speech’s content. His mistake, however, is in equating that situation to the case at
hand. The notable difference is that this case does not ask whether speech can be proscribed for a content
element unrelated to its proscribable non-content element. Instead, this is a case where the government
bans speech falling under the unprotected “fighting words” category based on content that is a subset of
that category. Regulating a subset of an unprotected category of speech does not operate in the same way
as proscribing protected speech for non-content purposes. A content-based restriction on an already
unprotected type of speech cannot be treated the same way as a content-based restriction on protected
speech.
While this paper does not aim to completely disregard Scalia’s focus on viewpoint discrimination,
it does show that viewpoint discrimination within a category of unprotected content should not be treated
the same way as viewpoint discrimination that affects otherwise protected speech. Part IV explores
exactly how viewpoint discrimination should be treated, considering the concept of content-based under-
inclusion and proposing a rule that incorporates Scalia’s concept of viewpoint discrimination for content-
based regulations. This rule will recognize that certain viewpoint discriminations need to be protected
against while not making the sweeping logical jump that Scalia makes to constitutionally invalidate all
viewpoint discriminatory regulations.

ii. Subject Matter Regulations vs. Viewpoint Discrimination

On top of highlighting statutory intent’s role in the regulation of speech, Scalia finds a way to
sidestep a central argument of Justice White’s concurrence. White argues that Scalia’s opinion completely
bars any content-underinclusive regulation of unprotected categories of speech. Content-underinclusive
regulations are those that only regulate a portion of an unprotected category of speech (e.g. protecting
only hateful fighting words, as opposed to all fighting words). To White, completely disallowing content-
underinclusive regulations flew in the face of Court precedent.
To combat White’s argument, Scalia draws a clear distinction between permissible subject matter
regulations and viewpoint-based regulations. This distinguishes the constitutionally allowed regulation of
speech based on its non-viewpoint content (i.e. regulating fighting words, obscenity, libel/defamation)
from what he considers unconstitutional viewpoint discrimination. This allows him to sidestep the
concurrence’s argument that the majority’s ruling completely disallows content-underinclusive
regulations, instead saying that the ruling only prohibits those underinclusive regulations that are based on
viewpoint.7 He further states that some content based under-inclusions not based on viewpoint (subject
matter restrictions) would be permissible, giving the example of only regulating the most prurient speech
within the category of obscene speech.8
The difference between subject matter and viewpoint regulations of speech makes logical sense
on its face. The founders wrote the First Amendment with the intent to protect the marketplace of ideas,
and eliminating certain viewpoints threatens that marketplace, skewing the societal discourse.9 However,
Court precedent shows that the process of determining which content-underinclusive regulations are
permissible under the Constitution is more complex than Scalia makes it. Scalia’s distinction here
undoubtedly matters, but Part IV will demonstrate how it fails to fully explain some of the Court’s other
cases which address content-based under-inclusion.

III. JUSTICE WHITE’S CONCURRENCE AND UNPROTECTED SPEECH

Justice White’s concurrence sees the majority opinion as inventing entirely new precedent to limit
the government’s ability to regulate unprotected speech as it sees fit. White argues that Scalia’s holding

7
Elena Kagan, “The Changing Faces of First Amendment Neutrality: R.A.V. v St. Paul, Rust v Sullivan, and the
Problem of Content-Based Underinclusion,” The Supreme Court Review Vol. 1992 (1992): 29-77; R.A.V. v. City of
Saint Paul, Minnesota, 505 U.S. 377 (1992).
8
R.A.V. v. City of Saint Paul, Minnesota.
9
Kagan, “The Changing Faces of First Amendment Neutrality.”
 29

completely eliminates the government’s ability to choose which unprotected speech it regulates. He takes
a strict categorical approach, saying that the First Amendment does not apply to unprotected categories of
speech, regardless of how the state chooses to regulate those categories. He argues that this approach
stays consistent with the Court’s precedent, while the majority invents a brand new rule, never proposed,
argued, or briefed by either of the case’s parties.
The categorical approach to the First Amendment is built off the concept that “[i]n light [of the
First Amendment’s] history, it is apparent that the unconditional phrasing of the First Amendment was
not intended to protect every utterance.”10 Certain categories of speech, which provide little or no value to
society and “are no essential part of any exposition of ideas, and are of such slight social value as a step to
truth that any benefit that may be derived from them is clearly outweighed by the social interest in order
and morality,”11 are immune from First Amendment protection. These categories include obscenity12,
libel13, and fighting words14, among others. Importantly, as White points out in this concurrence, these
categories are defined by their content, and the Court has consistently said that “the evil to be restricted
[by these categories] so overwhelmingly outweighs the expressive interests, if any, at stake, that no
process of case-by-case adjudication is required”15 and that these categories are “not within the area of
constitutionally protected speech.”16
White says that the majority opinion abandons the clearly and consistently stated principle that
these categories of speech fall entirely outside the bounds of constitutional consideration. It elevates the
Court’s appraisal of hateful and violent speech above the threshold such that it “outweigh[s] the social
interest in order and morality that has traditionally placed such fighting words outside the First
Amendment.”17 Furthermore, White points out that the majority’s rule against viewpoint discrimination
conflicts with various precedents. The majority tries to contour the rule to these precedents, but ultimately
fails to convincingly explain why a simple prohibition on viewpoint-based regulations can accurately
apply to precedent where the Court has explicitly allowed regulations on certain viewpoints.18 The
following section will explore in more detail the majority opinion’s inability to align with precedent,
specifically in how it deals with content based underinclusion.

IV. CONTENT-BASED UNDERINCLUSION: IN SEARCH OF A CONSISTENT RULE

Both the concurrence and dissent in RAV grapple with how to handle what then Professor Elena
Kagan called content-based underinclusion.19 The majority argues that all underinclusions based on
viewpoint are facially unconstitutional with few exceptions. The concurrence, on the other hand, argues
that this essentially forces the state to prohibit either an entire category of speech or none of it. Justice
White argues that the new viewpoint discrimination rule is overly restrictive and that the state should be
allowed to regulate portions of unprotected categories of speech.20 While the Court presents these two
opposite positions as the only options, this article argues that the Court’s decisions and the First
Amendment do not support either of these stances. After explaining the problems inherent within both
approaches, this paper will propose a new approach to dealing with content-based underinclusion that
addresses the pros and cons of Scalia’s and White’s approaches.

i. Analyzing Scalia’s Viewpoint Based Approach

10
R.A.V. v. City of Saint Paul, Minnesota.
11
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
12
Roth v. United States, 354 U.S. 476 (1957).
13
New York v. Ferber, 458 U.S. 747 (1982).
14
Chaplinsky v. New Hampshire.
15
New York v. Ferber.content-und
16
Roth v. United States.
17
R.A.V. v. City of Saint Paul, Minnesota.
18
Ibid.
19
Kagan, “The Changing Faces of First Amendment Neutrality.”
20
R.A.V. v. City of Saint Paul, Minnesota.
 30

The logic of presumptively holding viewpoint regulations unconstitutional is straightforward. The

First Amendment’s intent is to promote the exchange of views, and ordinances that pick and choose
opinions cut against that goal. Even the most stringent supporter of the concurrence’s approach to content
underinclusion must admit that an inherent discomfort exists in allowing the government to regulate, for
instance, only obscenity which critiques the government, or only libel which discredits supporters of a
particular political ideology. Speech central to our civil society, like political speech and speech in protest
of the government, obtains elevated value from its vital place in our democratic system. In gaining value
from its place in our civil society, the speech’s value comes from a source other than just its content,
which makes the speech vital to protect, even if it belongs to an unprotected category.
Scalia’s detractors would argue that these viewpoint distinctions are irrelevant. Unprotected
speech exits the purview of First Amendment protection, regardless of the regulation’s breadth or lack
thereof. The Court’s precedent already deemed the speech worthless by definition, and the state should be
left to determine how to regulate that speech. This criticism, while fair, fails to really address the
examples above of protest and political speech. Applying a rigid reading of precedent that strictly
enforces the categorical approach to speech is untenable for these cases. Clearly, viewpoint discrimination
needs to be disallowed in at least some instances.
That said, the Court’s precedents make it clear that presumptively invalidating all content-
underinclusive viewpoint regulations does not make sense either. The Court’s precedents with respect to
Title VII sexual harassment claims and hate crime laws clearly allow content-underinclusions based on
viewpoint. Justice White mentions the Title VII issue in his concurrence, arguing that the majority’s rule
would prohibit the regulation of sexual harassment, as regulating this speech constitutes an
underinclusion within the category of all workplace fighting words. Scalia attempts to address this by
saying that the speech is “swept up incidentally” by a statute targeting discriminatory conduct.21 But this
reasoning does not hold up: The speech’s relationship to the conduct may categorize the speech as
unprotected, but that is already the assumption for a content based underinclusion. Fighting words are
unprotected too, even though they are not related to any conduct. The viewpoint discrimination within
speech involved in harassment follows the same legal reasoning as a viewpoint discrimination within the
category of fighting words. The conduct element of the harassment that Scalia cooked up did not change
the status of the speech for the purposes of content underinclusiveness. In other words, just because the
speech was involved in harassment does not change the fact that regulating it is a content based
underinclusion.
Hate crime laws receive the same treatment, as seen in Wisconsin v. Mitchell. In fact, the Court in
Mitchell cited the very flawed reasoning that Scalia used to exempt Title VII from the viewpoint-based
rule. The Court argued that hate crime laws criminalize viewpoints only within the context of conduct, an
argument which falls prey to the same flawed reasoning.22 Speech involved in conduct may be
unprotected, but so is any other category to which this rule against viewpoint regulation applies. Clearly,
the Court’s precedents contravene an absolute rule prohibiting viewpoint-based underinclusions. That
being said, some viewpoint-based regulations obviously should not stand when they implicate
fundamental speech rights against the government and political speech.

ii. Analyzing White’s Approach: Free Regulation of Unprotected Categories

The concurring opinions take an absolute stance. The Court’s decades-old categorical approach
already clearly states what speech to protect. The Court has determined that certain types of speech have
so little value that their harms greatly outweigh their merits. The views espoused by that speech, then,
become irrelevant. The Court has decided that the government can regulate these categories of speech,
and the legislative branch has the power to make policy respecting how that speech is regulated. Applying

21
R.A.V. v. City of Saint Paul, Minnesota.
22
Wisconsin v. Mitchell, 508 U.S. 47 (1993).
 31

additional First Amendment protection to unprotected speech becomes entirely paradoxical under this
argument.23
This logic feels strong, but edge cases described in IV(i) poke holes that such a rigid framework
fails to address. Again, speech criticizing the government or espousing a political ideology requires
special consideration. But how can unprotected speech that has no inherent value as a part of its
regulatable category suddenly have value in the eyes of the First Amendment once it is regulated for its
viewpoint? The only thing that has changed between regulating the full category and the underinclusive
regulation is the regulation’s intent, and that is where the answer lies. Certain regulations, in targeting
certain sorts of viewpoints, imbue speech that lacks value under the First Amendment with novel value
simply by the nature of the regulation’s intent. This suggests that a more proper way to apply a rule
restricting viewpoint regulations is a reverse categorical approach, by which certain categories of
unprotected speech become protected when specifically targeted by statute.

iii. The New Approach

The reverse categorical approach, developed in sections A and B by analyzing the absolute
approaches at either end of the debate, both preserves the long-standing precedent of allowing for
relatively free regulation of categories of unprotected speech, and incorporates the portions of Scalia’s
viewpoint approach that actually warrant protecting otherwise unprotected speech. This approach would
create protected viewpoint categories that invalidate certain content underinclusive regulations, while
otherwise leaving the state free to regulate unprotected categories of speech as they see fit. While
impossible to anticipate every vital category of viewpoint before it arises, some categories would include
speech criticizing the government and speech espousing a particular political ideology. Any speech whose
value comes from a place beyond simply its content would get such treatment, as those viewpoint
categories would be deserving of protections despite their content being unprotected.

V. HATE SPEECH AS ITS OWN CATEGORY OF UNPROTECTED SPEECH

The hurdle hate speech regulation faces, beyond the question of which content-based restrictions
are valid, is the issue that ultimately led RAV v. St. Paul to be unanimous in its judgment. Even if
viewpoint-based regulations are permissible, hate speech regulations generally go far beyond simply
proscribing hateful fighting words. Even the concurrences saw the St. Paul ordinance as overly broad,
going beyond regulating just a subset of fighting words.24 In this section, this article will argue that hate
speech deserves to be treated as its own category of proscribable speech, consistent with the Court’s past
decisions of what makes speech unworthy of the First Amendment’s protection. This new category has
overlap with fighting words but also includes some speech that does not fall in that category.
To determine what makes hate speech proscribable as its own category, we have to delve into the
Court’s precedent. As was previously pointed out, the Court has said that speech is proscribable when it
has so little value that “any benefit that may be derived from them is clearly outweighed by the social
interest in order and morality.”25 Over the Court’s history, hateful speech has never explicitly been
considered a category of unprotected speech, but Supreme Court precedent suggests an underlying
doctrine of excluding hateful speech from protections. In Wisconsin v. Mitchell and Hishon v. King and
Spalding, the Court did not extend protection to certain speech, using reasoning that is dubious at best.
Both cases tied the speech to proscribable conduct, stripping the speech of protections despite the fact that
the regulations clearly involved viewpoint-based content discrimination that the Court should have
considered unlawful under RAV v. Saint Paul’s reasoning.

i. Wisconsin v. Mitchell

23
R.A.V. v. City of Saint Paul, Minnesota.
24
R.A.V. v. City of Saint Paul, Minnesota.
25
Chaplinsky v. New Hampshire.
 32

In Wisconsin v. Mitchell, as has been previously discussed, the Court upheld legislation that
punished hate crimes with higher penalties than the same crimes carried out without hateful motives. In
other words, hateful viewpoints carried with them a criminal penalty when they existed along with some
criminal conduct. The Court would say that this case does not implicate hate speech, because it ultimately
punishes conduct.26 Furthermore, Court precedent usually allows for crimes to be assigned different
penalties based on motive. However, under the Court’s reasoning in RAV v. Saint Paul, even speech that
has become unprotected as part of a particular category (in this case as a motive for some crime) is still
protected from regulations based on viewpoint. If hateful speech was not protected in RAV v. Saint Paul,
hateful motives should not be protected speech in hate crime legislation. Under RAV’s reasoning, the
Mitchell decision does not make any logical sense. Either the decision is simply wrong or there is
something else underlying the Court’s reasoning. This article argues for the latter, which will be
addressed in subsection iii.

ii. Hishon v. King and Spalding

In Hishon v. King and Spalding, the Court rejected the argument that sexual harassment in the
workplace warranted First Amendment protections, citing precedent where discrimination at private
schools or labor unions also lacked First Amendment protections.27 As discussed before, White’s
concurrence in RAV explicitly argues that Scalia’s reasoning in that case eliminates such protections
against harassment and discrimination.28 Indeed, speech meant to harass and discriminate falls squarely
into a viewpoint-based, hateful type of speech that RAV v. Saint Paul protects. Like in Wisconsin v.
Mitchell, the Court in Hishon v. King and Spalding tied speech to conduct, attempting somehow to
circumvent the RAV rule against viewpoint discrimination. And just like in Wisconsin v. Mitchell, the
Court’s reasoning fails to recognize the strength with which RAV condemns such viewpoint based
underinclusions. Once again, there must be some underlying reason why the Court is willing to
undermine its rule in RAV.

iii. Defining Hate Speech

This article is not fashioning a new category completely out of thin air. It is recognizing a
workaround that the Court has never explicitly recognized but has clearly used to already remove
constitutional protections from certain distasteful hate speech. This article simply formalizes a rule that
broadens and gives strength to existing Court interpretation. While the category is certainly new, it is not
without basis in Court precedent. In fact, formalizing hate speech as a category harmonizes the Court’s
decisions in Wisconsin v. Mitchell and Hishon v. King and Spalding with broader First Amendment
doctrine.
First Amendment precedent at least hints at an implicit tendency to allow viewpoint regulations
of certain speech like in Wisconsin v. Mitchell and Hishon v. King and Spalding. In order to define the
hate speech category that this article will create, the underlying reasoning for the First Amendment
exceptions in those cases must be discerned. The former case allows for the regulation of crimes with
hateful motives, and the latter case allows for the regulation of practices based on discriminatory beliefs.
Since both involve viewpoint restrictions on speech, there must be a category of unprotected speech
which each case implicates. That category is precisely the new hate speech category that this article seeks
to formalize. Both cases flew in the face of RAV’s reasoning in order to protect minority groups from hate
and discrimination which would diminish their ability to participate in our society.
The basis for allowing the regulation of such speech lies in the underlying protection our
constitutional system affords to “discrete and insular minorities.”29 Our democracy relies not only on the
absence of speech regulation, but also on the defense of protected groups’ ability to speak freely. Hate

26
Wisconsin v. Mitchell.
27
Hishon v. Spalding, 467 U.S. 69 (1984).
28
R.A.V. v. City of Saint Paul, Minnesota.
29
U.S. v. Carolene Products, 304 U.S. 144 (1938).
 33

speech cuts against society’s interest in an environment where all can speak and none are excluded based
on their immutable characteristics. Creating an atmosphere of fear, intimidation, or discomfort for
members of a particular group has a chilling effect on that group’s speech and participation in civil
society, the very thing that the First Amendment is meant to protect. This chilling effect so detracts from
the value of certain hateful speech that it wrenches that speech out of the confines of First Amendment
protection.
It follows that speech is unprotected hate speech when it meets two criteria: when the speech’s
primary effect is to exclude or diminish someone who belongs to a minority group, and the speech has
minimal to no societal value separate from the speech’s hateful content. Defining the category in this way
allows the state to restrict hateful speech that harms our society’s discourse, while also recognizing that
some hateful speech needs to be protected despite its harms, due to some value it brings to the table. For
instance, certain speech in an educational setting has value aside from its potential effects on minority
groups. This definition for the category balances the need for regulations on hateful speech with the
importance of allowing certain speech that has other value.

VI. A NEW TEST FOR HATE SPEECH

Bringing all of the analysis together, any hate speech regulation would have to pass a two-
pronged test. First, it would have to be a permissible viewpoint regulation as defined in Part IV, and
second, it would have to fall under the hate speech category defined in Part V. Even though regulating
hate speech would not be a content under-inclusion given the fact that Part V establishes hate speech as its
own category, it still implicates the issue of viewpoint discrimination given hate speech’s unique nature as
a viewpoint-based category. Therefore, the viewpoint rule from Part IV must be included in the rule.
The test will ask two questions: Does the speech damage the environment for public participation
of a protected class without any secondary elements that provide some societal value as discussed in Part
V? And does the regulation invoke special protections under the reverse categorical approach discussed in
Part IV? If the answers to those questions are yes and no respectively, then the regulation at issue is
permissible. This rule strikes the balance between regulating speech that damages the very marketplace of
ideas that the First Amendment seeks to create and allowing for political speech that is central to our
democracy, even when that speech is distasteful.
 34

DRAWING THE LINES: ALLEN V. MILLIGAN

AND THE BATTLE FOR FAIR REPRESENTATION IN AMERICA
Dominic Enright

I. INTRODUCTION
In democratic governments, voting serves as both a foundational right and a powerful tool for
citizens to shape policy. America’s founding, rooted in Enlightenment ideals, espoused liberty, justice,
and equality for all men. However, a history marred by centuries of slavery, the entrenchment of Jim
Crow laws, and pervasive systemic discrimination reveals stark deviations from these founding values.
Significant legislative victories have been won to secure equal access to the ballot with the Voting Rights
Act of 1965 (VRA)1 standing as one of the most monumental achievements of the American Civil Rights
Movement.
Despite federal and constitutional protections, voter disenfranchisement still persists, manifesting
as racial and partisan gerrymandering. These twin forces erode the very essence of fair representation,
undermining the promise of “one person, one vote.”2 By manufacturing electoral boundaries centered
around race or partisan lean, state lawmakers wield redistricting as a tool to minimize the voice of
targeted demographics. Although the Roberts Supreme Court is characterized by its conservative judicial
philosophy and aversion to federal oversight in state election laws, the decision in Allen v. Milligan
(2023) reveals a somewhat surprising scenario in which conservative justices concurred with the liberal
minority to affirm voting rights as underpinned by the VRA. This ruling ultimately points to a greater
issue: the undeniable partisan influence in redistricting. A consequence of this extremely flawed system is
the struggle to find reconciliation between states’ sovereignty and the push for civil liberties which has
been extensively debated in the courts.

i. The Voting Rights Act’s Legacy

The Voting Rights Act of 1965 was designed to protect the voting rights of all citizens and
sought to fulfill the promise of equal access to the ballot by combating racial disenfranchisement. This
legislation is armed with federal oversight powers in state elections with the objective of intervening on
behalf of vulnerable communities. It enshrines fair representation into federal law by explicitly
“prohibiting voting practices or procedures that discriminate on the basis of race, color, or membership in
one of the language minority groups identified in Section 4(f)(2) of the Act.”3

ii. Background
On June 8, 2023 the Supreme Court of the United States upheld the lower court’s ruling that the
state of Alabama’s congressional maps violated Section II of the Voting Rights Act of 1965. This
landmark decision had massive implications for voting rights and redistricting in the United States.
Following the 2020 census, the Alabama Legislature’s Committee on Reapportionment released a new
map which included one oddly-shaped majority-black district, despite black citizens encompassing more
than 27% of the state’s population.4
A group of citizens and civil rights advocates challenged the map arguing that the
malapportioned districts dilute the electoral power of black voters in the state which is in direct violation

1
“52 U.S. Code § 10101 - Voting Rights,” Legal Information Institute, accessed November 19, 2024,
https://www.law.cornell.edu/uscode/text/52/10101.
2
“One-Person, One-Vote Rule,” Legal Information Institute, accessed November 20, 2024,
https://www.law.cornell.edu/wex/one-person_one-vote_rule.
3
“Section 2 of the Voting Rights Act,” Civil Rights Division, April 5, 2023, https://www.justice.gov/crt/section-2-
voting-rights-act.
4
Andrew Hamm, “Allen v. Milligan,” SCOTUSblog, accessed November 19, 2024,
https://www.scotusblog.com/case-files/cases/merrill-v-milligan-2/.
 35

of Section II of the VRA. Three groups of plaintiffs filed suit with the shared objective of preventing the
Alabama Secretary of State from conducting elections with these maps.5 A three-judge panel for the
district court blocked the usage of this map for the 2022 midterm elections, finding that the state
potentially violated Section II by means of ‘packing’ and ‘cracking’ Black voters.6 The term ‘packing’
refers to the practice of creating electoral boundaries that consolidate a particular community into a
smaller number of districts. ‘Cracking’ entails splitting a constituency across a number of districts with
the effect of reducing its capability to select its preferred candidates.7 Both of these methods may be
weaponized to benefit one group at the expense of another. This type of predatory mapmaking falls under
the definition of gerrymandering.8
Recognizing this negligence, the district court ordered the state legislature to draw another map
with a second district where Black voters have the potential to elect their preferred candidate.9 In
February of 2022, the state of Alabama appealed directly to the Supreme Court of the United States with
the primary argument that race should not be a consideration in congressional redistricting citing the
Equal Protection Clause of the Fourteenth Amendment. In a 5-4 decision, the Supreme Court approved
the state’s request for a stay for the 2022 midterm elections, but heard oral arguments shortly thereafter,
which came as a surprise to many legal experts who noted the Roberts court’s skepticism of the Voting
Rights Act. This paper will examine the precedent set by Allen v. Milligan and offer insights on the
pending case, Callais v. Landry (2024). These cases will be analyzed and discussed in an attempt to
evaluate the challenge of promoting racial equity without disenfranchising other voter factions.

II. MAJORITY OPINION IN ALLEN V. MILLIGAN

Chief Justice John Roberts authored the majority opinion which reaffirmed Section II, touted as a
major victory for voting rights advocates. They found that Alabama’s redistricting efforts unlawfully
minimized Black voters’ influence. The majority also drew upon precedent established in Thornburg V.
Gingles (1986) which details criteria for proving redistricting map violations of Section II. Commonly
referred to as the “Gingles Test,” three conditions must be met in order to prove Section II violations.
First, the “minority group must be sufficiently large and geographically compact to constitute a majority
in a single-member electoral district.” Second, “the minority group is politically cohesive.” And third,
“that the white majority votes sufficiently as a bloc usually to defeat the minority’s preferred candidate.”10
If the three preconditions are met, the plaintiff must demonstrate the “totality of circumstances,” which
requires substantial evidence that the political process being subjugated is not “equally open” to minority
voters.11
This criteria also requires a deeper analysis of the history of discrimination in this jurisdiction,
barriers to political participation, and minority representation in government. This facet of the Gingles
Test is necessary in determining whether or not the electoral system affords equal access to minority

5
21-1086 Allen v. Milligan (06/08/2023), accessed November 20, 2024,
https://www.supremecourt.gov/opinions/22pdf/21-1086_1co6.pdf.
6
“Packing, Cracking and the Art of Gerrymandering around Milwaukee,” Translational Applied Demography:
Packing, Cracking And The Art Of Gerrymandering Around Milwaukee, accessed November 24, 2024,
https://apl.wisc.edu/shared/tad/packing-cracking.
7
7971 and 206, “Gerrymandering Explained,” Brennan Center for Justice, March 7, 2024,
https://www.brennancenter.org/our-work/research-reports/gerrymandering-explained.
8
“Packing,” Ballotpedia, accessed November 19, 2024, https://ballotpedia.org/Packing.
9
Soniamontejano, “Justice Kavanaugh’s Allen v. Milligan Concurrence Invites Further Challenges to Section 2,”
Fordham Law Voting Rights and Democracy Project, October 9, 2023,
https://fordhamdemocracyproject.com/2023/10/09/justice-kavanaughs-allen-v-milligan-concurrence-invites-further-
challenges-to-section-2/.
10
Supremecourt, accessed November 25, 2024, https://www.supremecourt.gov/DocketPDF/21/21-
1086/222354/20220502163340023_21-1086%20and%2021-
1087%20Amicus%20NRRT%20Supp.%20Appellants.pdf.
11
“Thornburg v. Gingles,” Ballotpedia, accessed November 19, 2024, https://ballotpedia.org/Thornburg_v._Gingles.
 36

voters. It also remains the lens through which claims of racial discrimination in voting are reviewed. In
this case, the court determined that the plaintiffs met all the necessary prerequisites and successfully
proved the totality of circumstances. The evidence showed that Alabama’s Black population was
sufficiently large and geographically compact to justify the creation of a second district. Furthermore, the
court found that Black voters in Alabama do tend to vote cohesively while White voters, as the majority,
also vote cohesively in a way that inhibits the Black community from choosing representatives who align
with their preferences. The Majority emphasized that race-conscious measures remained a lawful and
necessary tool for surveying instances of potential disenfranchisement while noting that race-predominant
mapping (which calls for proportional racial representation) was not valid. In its argument, Alabama
misrepresented the plaintiff’s argument as an attempt to implement race-predominant mapping which the
courts ultimately found was not the case in this scenario.

III. DISSENTING OPINION IN ALLEN V. MILLIGAN

The principal dissent was written by Justice Clarence Thomas, joined by Justice Gorsuch and
partially by Justices Alito and Barrett. Thomas’ main argument asserted that the majority’s interpretation
of Section II of the Voting Rights Act erroneously mandates race-based districting, which the
Constitution does not support.12 He maintained that the Voting Rights Act does not guarantee
proportional representation and criticized the majority for, in his view, requiring the state to utilize race as
a significant factor in redistricting. His interpretation of this ruling concluded that failing to conduct a
redistricting process that prioritized race-neutrality would inherently violate the protections found in the
Constitution.
Furthermore, the dissenting opinion revealed its conservative predilection for states rights,
expressing concern about the consequences of imposing federal oversight on state redistricting efforts.
Clarence Thomas referenced Brnovich V. Democratic National Committee (2021) in his dissent,
discussing how this decision influences his views on racial discrimination in voting. To provide some
context, Brnovich V. Democratic National Committee was a key supreme court case that addressed the
legality of particular voting laws in Arizona and examined similar provisions of the Voting Rights Act of
1965. The primary concerns of this case dealt with out-of-precinct ballots and ballot collection. The DNC
similarly claimed that these voter laws violated Section II of the Voting Rights Act. The court ultimately
ruled along partisan lines that no violations were found. This decision set a precedent that made it more
difficult to challenge voting laws under the Voting Rights Act, highlighting the state’s autonomy in
administering elections.13
While the dissenting opinion presented a compelling and strong line of reasoning, it failed to
acknowledge the Voting Rights Act’s storied significance in protecting minority rights. Thomas’
interpretation downplays the importance of the VRA through his overreliance on race-neutral redistricting
standards which ignores decades of marginalization. While race-neutral principles are important, they
cannot override the VRA’s mandate to ensure fair representation for all groups. The majority extensively
explained that race-conscious considerations were necessary to remedy the historical and systemic
underrepresentation of Black voters in Alabama. Ignoring race’s role in previous redistricting perpetuates
existing racial inequities rather than resolving them. Additionally, the minority’s argument that
considering race would violate the Equal Protection Clause of the Fourteenth Amendment incorrectly
applies this standard. The clause guarantees individuals equal treatment by state governments which had
been denied by the State of Alabama through their predatory redistricting practices. In this instance, the
consideration of other factors is justified by an interest to promote fair representation in government.

IV. CALLAIS V. LANDRY (2024)

12
21-1086 Allen v. Milligan (06/08/2023), accessed November 20, 2024,
https://www.supremecourt.gov/opinions/22pdf/21-1086_1co6.pdf.
13
Oyez, Brnovich v. Democratic National Committee, 594 U.S. ___ (2021), accessed November 20, 2024,
https://www.oyez.org/cases/2020/19-1257
 37

Building on the Equal Protection Clause’s role in safeguarding individual rights, the pending
case, Callais v. Landry (2024), raises important questions about constitutional constraints on racial
considerations in redistricting. This federal lawsuit is centered on Louisiana’s congressional redraw
following the earlier ruling of the Court of Appeals in Robinson v. Landry (2022)14 which warranted an
edict to create a second majority-Black district to reflect the shift in population. However, this decision
sparked backlash from a group of non-Black citizens. The plaintiffs alleged that race was prioritized in
the new design and was thus an unconstitutional gerrymander under the 14th and 15th Amendments. This
map is now being challenged in Callais v. Landry, with plaintiffs arguing that race was not simply taken
into account, but improperly prioritized in drawing district lines. A three-judge panel at the district level
blocked the use of the remedial map; however this decision was appealed to the Supreme Court.15
Given the dynamic of this case, it is easy to draw comparisons between Allen v. Milligan and
Callais v. Landry. Both cases share a focus on the tension between honoring the promise of fair
representation in the Voting Rights Act and constitutional limits on race-based redistricting. Balancing
minority representation without undermining the political power of other demographics is a complex
challenge. Affording historically marginalized groups the same ability to elect leaders of their choice
often requires a reevaluation of the status quo but if not executed correctly, risks the potentiality of racial
gerrymandering. Based on the precedent set in Allen v. Milligan, the Supreme Court should uphold
Louisiana’s provisional map with two majority-Black districts, provided it properly balances racial
considerations with traditional redistricting principles like compactness and community cohesion. If the
map disproportionately emphasizes race then the court should see it fit to require further adjustments.
Compliance with the VRA is essential to protecting minority rights and it is possible to do so without
disenfranchising other voter blocs. The court however, should clarify that while race consciousness may
be necessary in addressing historical wrongdoings, it must be narrowly tailored to meet legal
requirements and adhere to the Fourteenth Amendment.

V. CONCLUSION
The outcomes of Allen v. Milligan and the pending case Callais v. Landry highlight the evolving
dynamics of voting rights and fair representation in America. The ruling in Allen v. Milligan solidified the
importance of Section II of the VRA in combating vote dilution, reaffirming the rights of all citizens to
choose leaders who share their values. Conversely, Callais v. Landry tests the boundaries of this
principle, testing whether or not race-conscious solutions can be executed without overstepping
constitutional protections against racial gerrymandering. As demographics continue to shift and reshape
the electorate, courts will face increasingly difficult challenges in deciphering where to draw the line.
The evolution of this topic reflects the nation’s ongoing struggle to align its democratic principles
with its practices. The founders envisioned a system where districts would provide proportional
representation, but they could not have foreseen the complexities that accompanied massive population
growth, partisan interests, and developments in technology. As the nation progresses into the twenty-first
century, lawmakers must craft policies that uphold American values while adapting to the ever-changing
political landscape. Fair representation remains the cornerstone of a vibrant and functioning constitutional
republic and in an era marked by uncertainty, the justice system must continue to provide an avenue for
progress through meaningful discourse.
The broader implications for the future are profound. These decisions will not only impact
electoral outcomes but public trust in the fairness and inclusivity of the democratic process. For the
United States to achieve equitable representation and live up to its highest ideals, lawmakers must
prioritize transparency, balance, and a commitment to uphold both the Constitution and VRA’s legacy.
Under the current system, partisan majorities in state legislatures possess the power to draw district lines–

14
“Robinson v. Landry,” American Civil Liberties Union, July 3, 2024, https://www.aclu.org/cases/robinson-v-
ardoin.
15
“Callais v. Landry,” American Civil Liberties Union, September 19, 2024, https://www.aclu.org/cases/callais-v-
landry.
 38

a massive structural failure that gives way to biased maps. Adopting Independent Redistricting
Commissions or exploring the possibility of computer-generated models can be the first step in
addressing the root issues. Only by raising these critical concerns can Americans ensure that the great
democratic experiment endures for another two and a half centuries.
 39

FORMAL AND TRADITIONAL LAW IN ZAMBIA:

LEGAL SYSTEMS IN COOPERATION AND CONFLICT
Robert Farbman

I. INTRODUCTION
Zambia operates with two legal systems: a formal system based on British common law and a
traditional system rooted in customary practices governed by tribal chiefs. The formal courts aim to
provide consistent legal decisions based on legislature and judicial precedent, but are often inaccessible to
rural populations due to geographical and resource limitations.1 This manifests itself as a lack of physical
resources at courts, a lack of courts in rural areas, and unaffordable legal representation, among other
issues.2 In contrast, traditional courts offer culturally relevant justice but can conflict with constitutional
protections, especially regarding women's rights and human rights.3 However, for most of Zambia’s
primarily rural and impoverished population, traditional courts are often the first and only option for
justice.4
To address these challenges, there are multiple proposed solutions. These include government
efforts to expand the reach of formal courts in rural areas, partnerships with traditional systems to
enhance access to justice, and initiatives encouraging pro bono legal work to support underserved
communities. These solutions aim to ensure greater legal access while respecting the role that traditional
courts and their leaders play in Zambian society. While these efforts have had some success, many
continue to be strained by a severe lack of funding and small scale limitations. That being said, the
projects with the most potential are those that make efforts to coordinate with local and traditional
officials, while delivering on the ground resources to rural communities. By focusing on solutions that are
built on these ideas, Zambia can begin to move towards a more equitable justice system.

II. BACKGROUND ON TRADITIONAL AND FORMAL LEGAL SYSTEMS

i. Traditional Legal Systems and Customary Law
The traditional legal system in Zambia predates the colonial era, and plays a vital role in the day
to day lives of Zambians across much of the country, especially in rural areas that lack formal legal
resources. Traditional courts primarily handle civil issues, such as divorce, theft, defamation of character,
and land disputes.5 These courts are run by tribal chiefs and local leaders, who use an unwritten and orally
transmitted body of norms and practices referred to as customary law to resolve disputes.6 One primary
feature of this traditional court system is a focus on reconciliation and restorative justice, helping
participants find solutions that can help deliver justice without destroying the relationships that are often
necessary for survival in rural communities or resorting to imprisonment.7 This emphasis on restoring
social relationships often makes them more culturally relevant and accessible to rural populations
compared to the formal legal system. However, the absence of written statutes and the subjective nature
of customary rulings lead to inconsistencies and uncertainty, particularly when these rulings contradict
national laws. Although the formal law and its rulings technically trump traditional court rulings, this is
often not the case due to a lack of communication or effective enforcement.8
Criticism of traditional courts often focuses on human rights violations, particularly in cases
involving women’s rights. These courts frequently uphold patriarchal norms that disadvantage women in

1
Venkateswaran, Baimu, and Matsuura, “Zambia Judicial Sector Public Expenditure and Institutional Review.”
2
Venkateswaran, Baimu, and Matsuura.
3
Venkateswaran, Baimu, and Matsuura.
4
Venkateswaran, Baimu, and Matsuura.
5
Manaleta, “Traditional Conflict Resolution Strategies among the Lozi Speaking People of Nasitoko Village of
Mongu District in Western Province.”
6
Venkateswaran, Baimu, and Matsuura, “Zambia Judicial Sector Public Expenditure and Institutional Review.”
7
Manaleta, “Traditional Conflict Resolution Strategies among the Lozi Speaking People of Nasitoko Village of
Mongu District in Western Province.”
8
Venkateswaran, Baimu, and Matsuura, “Zambia Judicial Sector Public Expenditure and Institutional Review,” 38.
 40

matters like inheritance, land ownership, and divorce.9 For example, in some tribes, women may be
denied equal rights to inherit property, despite protections offered by the Zambian constitution. In
addition, traditional courts often operate with limited oversight, and although there is technically an
appeals process to the formal court system, many people in rural areas are unaware of this option or lack
the resources to pursue it, and even if these appeals are successful, it is difficult to enforce formal court
decisions on a local level, meaning that the ruling of the traditional court is most likely to impact the
realities on the ground.10

ii. The Formal Legal System and Colonial Influence

Zambia’s formal legal system is based on the British colonial framework of common law
established in the late 19th and early 20th centuries during British rule. The introduction of British
common law during the colonial era created a structured legal system focused on governing commerce,
governance, and crime.11 After Zambia’s independence in 1964, this legal structure was largely retained,
and today it includes a hierarchical system consisting of local courts, high courts, and the Supreme Court,
all tasked with applying statutory law passed by Zambia’s parliament.12 The formal courts are intended to
provide consistent legal outcomes and to safeguard constitutional protections, including rights to equality
before the law, property rights, and human rights.13 However, due to a massive lack of funding, the formal
court system has failed to expand effectively into rural areas, where a majority of the Zambian population
resides.14
Efforts by the Zambian government to expand access to the formal justice system have included
initiatives to build more courts in rural areas, projects increasing the usage of alternative dispute
resolution, and the promotion of legal education.15 However, these initiatives face significant limitations
due to a shortage of resources and a lack of legal professionals across the entire country, especially
considering the concentration of lawyers in urban centers.16 Due to these constraints, many rural
communities continue to rely on traditional courts, which are perceived as more culturally relevant and
accessible. This reliance poses challenges when customary rulings conflict with constitutional protections,
especially regarding gender equality and human rights, which are better addressed in formal courts.

III. CONFLICT/COOPERATION AND CHALLENGES OF THE TRADITIONAL SYSTEM

i. Jurisdictional Overlap and Inconsistent Outcomes
One issue arising from Zambia’s dual legal system is the jurisdictional overlap between
traditional and formal courts. Traditional courts generally handle civil matters such as divorce, land
disputes, and inheritance. However, the informal nature of these courts, combined with their reliance on
unwritten customary law, often leads to inconsistent legal outcomes when compared to the more
structured and codified formal legal system.17 This leads to a lack of consistency not only between the
formal and traditional system, but across traditional courts as well, as the oral unwritten law is applied at
the discretion of the tribal chiefs. This lack of regulation raises concerns about accountability for
traditional court decisions, with major implications for fairness and human rights.18

ii. Human Rights and Women’s Issues

9
Lieberman, “Zambia – Project to Increase Justice for Women in Traditional Courts.”
10
Venkateswaran, Baimu, and Matsuura, “Zambia Judicial Sector Public Expenditure and Institutional Review.”
11
Venkateswaran, Baimu, and Matsuura, 2022.
12
Venkateswaran, Baimu, and Matsuura, 2022, 76
13
Obrien Kaaba, The Challenges of Accessing Justice in Zambia, 2015.
14
Venkateswaran, Baimu, and Matsuura, 2022, 78.
15
Venkateswaran, Baimu, and Matsuura, 2022, 78
16
Obrien Kaaba, The Challenges of Accessing Justice in Zambia, 2015.
17
Venkateswaran, Baimu, and Matsuura, 2022, 21.
18
Venkateswaran, Baimu, and Matsuura, 2022, 24.
 41

One of the primary concerns with the traditional system is its disproportionate negative impact on
vulnerable groups, particularly women. This issue is exacerbated by a lack of legal literacy and access to
the formal system, which is surrounded by paywalls that make it inaccessible for most vulnerable
Zambians.19 Zambia has some of the highest rates of gender based violence in the world, and many of
these cases often end up in male chief run traditional courts with inconsistent standards, failing to deliver
justice to these women.20 According to Restless Development, a Zambian NGO, “The dual structure of
statutory law and customary law, has perpetuated gender inequality. Rights which are supposed to be
protected under statutory law, are not necessarily observed and women endure unfair treatment in terms
of child marriage, unequal distribution of property, and more under the customary law.”21 According to
Restless Development, the lack of application of statutory law is one of the main causes of the continued
massive gender inequality in Zambia.22 Even when legislation is passed to protect women or other
vulnerable groups, such as the creation of an independent Ministry of Gender, the lack of application at a
local level in much of rural Zambia means that the vulnerable parties most at risk rarely benefit from
progressive legislation.
In addition to the lack of implementation of national policy, the male dominance of the traditional
court system and its patriarchal structure lead to worse outcomes for women and vulnerable groups.
According to the 2018 Zambian State of Human Rights Report by the Zambian Human Rights
Commission, although property rights are guaranteed for all, evidence shows that women do not have the
same property rights as men in practice.23 One reason for this disparity is the built in gender roles that
dominate rural societies and their customary laws. According to the UN Women’s Report Network,
traditional courts are predominantly male run, and traditionally, women are not supposed to challenge
men, which makes defending oneself in court a difficulty.24 Combined with a lack of application of
national legislation and human rights standards, this absence of female leadership and authority in the
traditional system contributes to discriminatory outcomes. That being said, considering the financial
barriers to accessing the formal system and the shortage of courts and lawyers in rural areas, traditional
courts are often the only choice for women seeking justice.

IV. EVALUATING CURRENT AND PROPOSED POLICIES AND SOLUTIONS

Throughout Zambia, there exist a multitude of proposed and active solutions working towards
resolving the current gaps arising from the conflict between the traditional and formal system, as well as
the general lack of access to justice in the country. These solutions include government initiatives, private
projects, and NGO sponsored programs. An exploration of some of the most relevant and successful
initiatives can give us insight into the path forward, and how the legal landscape in Zambia will change in
the coming years. Based on the following review, initiatives that include coordination with local and
traditional court officials, while having steady sources of funding emerge as the most likely to have
success. In this context, those initiatives include One Stop GBV centers, Fast Track GBV courts, projects
to increase legal professionals, and new reforms to legal aid.

i. Government Programs/Initiatives
Some of the most relevant initiatives to increase access to justice and address the gap between the
formal and traditional system come directly from the government. One such attempt has been the launch
of multiple fast-track courts for gender based violence, in collaboration with the United Nations

19
Obrien Kaaba, The Challenges of Accessing Justice in Zambia, 2015.
20
Venkateswaran, Baimu, and Matsuura, 2022, 37
21
Mtonga, Dennis, “The Zambian Gender Gap: Between Law and Custom,” We Are Restless, May 15, 2020,
https://wearerestless.org/2020/03/23/the-zambian-gender-gap-between-law-and-custom/.
22
Mtonga, Dennis, “The Zambian Gender Gap,” 2020.
23
Zambia 2018 Human Rights Report, https://www.state.gov/wp-content/uploads/2019/03/Zambia-2018.pdf.
24
Amy Lieberman, “Zambia – Project To Increase Justice For Women In Traditional Courts,” WUNRN,
https://wunrn.com/2013/02/zambia-project-to-increase-justice-for-women-in-traditional-courts/.
 42

Development Programme.25 These fast track courts are meant to make the process of dealing with gender
based violence cases more efficient, while also spreading the resources more evenly across provinces.26
Considering the prevalence of gender based violence in Zambia and the inconsistent application of justice
for affected women in the traditional system, investing more government resources into fast track courts
that can make the formal system more accessible for victims is promising. That being said, making sure
that these courts are funded, spreading information about them, and addressing the high-cost barriers to
participation will be essential to maximize impact.
Another relevant government program is the Enabling Access to Justice, Civil Society
Participation and Transparency program, or EnACT, which is sponsored by the German Federal Ministry
for Economic Cooperation and Development and the European union in collaboration with the Zambian
government.27 This project works with the Zambian Ministry of Justice to increase access for vulnerable
groups through digital solutions and increased transparency.28 The project is set to run from 2021 to 2026
and involves other funders as well, such as the Danish Institute for Human Rights. However, three years
down the line, there is little news or report of progress being made, or specific improvements from this
program. Although information on many of these solutions is scarce, projects such as EnACT that don’t
specifically focus on increasing access to justice on the ground are likely not having much of an impact
on the day to day lives of most Zambians, for whom the lack of access to the formal system is most
pressing.

ii. One Stop Centres

One popular solution across Zambia is the implementation of One Stop Centres, meant to provide
legal resources to rural populations in an easily accessible manner. One example is the GBV One Stop
Centre in Kalimbula district, which was established to provide resources for survivors and community
members, in collaboration with traditional leaders in the community.29 The center will provide many
different services, including education, under the Promoting Human Security Through Sustainable
Resettlement Programme, with support of The UNDP.30 This program is aimed at fighting the high rates
of gender based violence in Zambia by providing legal resources and aid to victims in vulnerable
communities. These one-stop centers have become increasingly popular, being implemented in provinces
all across the country by both private and government entities. Considering the quick ramp up of well-
funded centers, it will be interesting to see how this affects accessibility in the near future. However, this
solution is easily replicable and expandable, which makes it particularly poised to be effective.

iii. Increasing Legal Professionals

Many attempts at increasing access to justice and the formal legal system center around
addressing the severe lack of legal professionals and resources in Zambia, especially in rural areas. One
such attempt, funded by the Danish Institute for Human rights, is aimed at connecting formally trained
paralegals with traditional courts in the Southern and Eastern Provinces.31 These paralegals are recruited
from the areas they will serve, and are tasked with providing free legal resources, specifically aimed at

25
Chipili Makasa, “Anti-Gender Based Violence And User-Friendly Fast Track Court Launched In Mansa,”
Luapula Provincial Administration, June 19, 2024,
https://www.lua.gov.zm/?p=3352#:~:text=Chief%20Justice%20Dr.,Track%20Court%20in%20Mansa%20district.
26
Chipili Makasa, “Anti Gender Based Violence and User Friendly Fast Track Court Launched in Mansa,” 2024.
27
“Promoting Transparency, Participation and Access to Justice in Zambia,” GIZ, November 2023,
https://www.giz.de/en/worldwide/137454.html.
28
“Promoting Transparency,” GIZ, 2023.
29
“Launched One Stop Centre Is a Key Node in Protecting GBV Victims in Resettlement Schemes,” UNDP, August
20, 2020, https://www.undp.org/zambia/stories/launched-one-stop-centre-key-node-protecting-gbv-victims-
resettlement-schemes.
30
Launched One Stop Centre,” UNDP, 2020.
31
Amy Lieberman, “Zambia – Project To Increase Justice For Women In Traditional Courts,” WUNRN,
https://wunrn.com/2013/02/zambia-project-to-increase-justice-for-women-in-traditional-courts/.
 43

women and the promotion of human rights.32 In addition, these paralegals are training local court officials
to recognize and deal with more serious cases that should be referred to the formal system.33 As with
many of these initiatives, there is little information on the success of this program. However, it promises
to provide some benefit by addressing the lack of legal resources while specifically integrating into the
traditional system, instead of ignoring it. If this project proves successful, it could point towards the
importance of incorporating trained legal professionals into the traditional system and context as a method
of improving outcomes for women and vulnerable populations in rural areas.

iv. Legal Aid

There are many programs that target the issue by focusing on increasing access to legal aid. One
example of this comes with a new pro bono scheme from LAZ, the law association of Zambia. This new
initiative lays out greater requirements for members practicing law in Zambia in terms of pro bono
requirements.34 This even includes extra credit for work done in rural and underserved areas to better
distribute the pro bono work being done.35 This new scheme holds the potential to make a big difference,
but it will take time to see how it plays out. 36 Another example of programs focused on legal aid is a new
initiative from The German GIZ, which created a three level training program for paralegals, so that they
can provide free legal aid under the new National Legal Aid Policy passed in 2018.37 According to GIZ,
as of August 2023, 317 paralegals have been trained by them, and 104,000 Zambians have received free
assistance from a paralegal under the new framework.38 This program has a clear impact as can be seen in
the numbers, and is a model for an effective attempt to increase legal aid services. It will be interesting to
see how these numbers change, but this seems like a successful effort so far.

V. CONCLUSION
Zambia’s dual legal system provides two paths to justice, but the gaps between the formal and
traditional systems continue to create significant challenges. While the formal system is designed to
uphold statutory law and constitutional protections, it remains out of reach for much of the rural
population due to geographic and economic barriers. At the same time, traditional courts offer a more
accessible option but often perpetuate practices that conflict with national laws, particularly when it
comes to women’s rights and human rights. Efforts to bridge these gaps are numerous - and government
initiatives like fast-track courts and partnerships with NGOs to increase legal aid have made some
progress. However, many programs are underfunded and underutilized, and as a result, many rural
communities continue to rely on traditional courts, where outcomes can be inconsistent and accountability
is limited. Moving forward, it will be crucial to focus on finding ways to better integrate the two systems,
ensuring that justice is both accessible and aligned with Zambia’s constitutional commitments. Based on
solutions covered in this review, focusing on projects that coordinate and integrate with traditional courts
on the ground while providing day to day legal resources to vulnerable rural communities have the
highest likelihood of making a real impact. In addition, expanding formal court coverage, improving
oversight of traditional courts, and increasing legal resources in rural areas will be key steps in making
justice truly equitable. Only by addressing these issues from both sides, encompassing direct government
funding and organization of the judicial system and non-profit attempts to supplement and increase access
to that system, can Zambia move toward a legal system that serves all its citizens, especially those who
are most vulnerable.

32
Lieberman, “Project to Increase Justice for Women in Traditional Courts,” 2013.
33
Lieberman, “Project to Increase Justice for Women in Traditional Courts,” 2013.
34
LAZ Pro-bono Legal Services Scheme
35
LAZ Pro-bono Legal Services Scheme
36
LAZ Pro-bono Legal Services Scheme
37
Giz, “Equal Justice for All – Free Legal Assistance in Zambia,” GIZ, 2023,
https://www.giz.de/en/mediacenter/equal-justice-in-zambia.html.
38
GIZ, “Equal Justice for All,” 2023.
 44

THE FEDERAL RESERVE: INDEPENDENCE, ACCOUNTABILITY, AND

CONSTITUTIONAL DEBATE
Owen Finn

I. INTRODUCTION TO THE FEERAL RESERVE

In the 1800s and early 1900s, public distrust in the banking system led to frequent bank runs and
financial crises. Between 1863 and 1910, there had been three major banking panics and eight more
localized panics in the United States.1 In response, the Federal Reserve Act of 1913 was signed into law
by Congress in order “to provide for the establishment of Federal reserve banks, to furnish an elastic
currency, to afford means of rediscounting commercial paper, to establish a more effective supervision of
banking in the United States, and for other purposes.”2 The Federal Reserve Act lays out a central
banking system with three key features: a central governing Board (called the Board of Governors today),
a decentralized operating structure of twelve Reserve Banks, and a combination of public and private
characteristics.3 The twelve regional banks are spread across major cities like New York, Boston,
Chicago, and Philadelphia.
The Fed is driven by two objectives. First, it aims to maintain stable prices, which means an
annual inflation target of about 2%. Second, it seeks to achieve full employment; while the definition of
full employment is up for debate, this typically means an unemployment rate of 4-5%.4 The Fed works
with Congress to set these targets. The Fed’s primary goal is to set interest rates at the optimal level to
maintain low inflation and full employment.5
The Federal Reserve controls the three tools of monetary policy: open market operations, the
discount rate, and reserve requirements.6 The Fed has three policymaking branches: the Board of
Governors, the 12 Federal Reserve Banks, and the Federal Open Market Committee (FOMC). The Board
of Governors, the governing body of the Fed, is responsible for the discount rate and reserve
requirements. The Board consists of seven members, each of which is nominated by the president, to a
fourteen-year term, and has been led by Fed Chair Jerome Powell since 2018. The Board of Governors
reports to and is directly accountable to Congress.7 The FOMC is responsible for open market operations,
such as setting interest rates and managing the money supply. The FOMC consists of twelve members:
those on the Board of Governors, the president of the New York Fed, and four other regional presidents

1
Jessie Romero, “Jekyll Island: Where the Fed Began,” Richmond Federal Reserve, 2015,
https://www.richmondfed.org/-
/media/RichmondFedOrg/publications/research/econ_focus/2015/q1/pdf/federal_reserve.pdf.
2
Federal Reserve Act, Pub. L. No. 63-43, 38 Stat. 251 (1913). Accessed via Lexis+,
https://plus.lexis.com/document?crid=9c10036d-4ae1-4a11-a18f-
b08ccfde4d2d&pddocfullpath=/shared/document/statutes-legislation/urn:contentItem:5C9D-VN70-01XN-S46P-
00000-
00&pdsourcegroupingtype=&pdcontentcomponentid=173014&pdmfid=1530671&pdisurlapi=true#/document/e8c1c
7cc-5c79-4ee4-81cf-1b3bcfac9339.
3
“The Fed Explained: What the Central Bank Does,” 2021, https://www.federalreserve.gov/aboutthefed/files/the-
fed-explained.pdf.
4
James McBride, Anshu Siripurapu, and Noah Berman, “What Is the U.S. Federal Reserve?,” Council on Foreign
Relations, August 15, 2024, https://www.cfr.org/backgrounder/what-us-federal-
reserve#:~:text=It%20is%20responsible%20for%20managing,purchases%20to%20boost%20financial%20markets.
5
Jordan Weissmann, “Could Donald Trump Break the Fed?,” The Atlantic, August 21, 2024,
https://www.theatlantic.com/politics/archive/2024/08/donald-trump-federal-reserve-independence/679535/.
6
“Federal Open Market Committee,” The Fed - Federal Open Market Committee, September 2024,
https://www.federalreserve.gov/monetarypolicy/fomc.htm.
7
“The Fed Explained: What the Central Bank Does,” 2021.
 45

on a rotating basis.8 Each regional president is appointed to a five-year term by their bank’s directors,
subject to the approval of the Board of Governors.9
Although the Board of Governors are appointed by the president and approved by the Senate, the
Federal Reserve operates mostly independently of the federal government.10 Since its founding, presidents
have had a long history of trying to influence the Fed, but it has mostly been left alone for the past two
decades. Recently, some politicians, notably President-elect Donald Trump, have argued that the
president should potentially have a say in setting interest rates. They argue the central bank’s actions must
be tightly coordinated with government actions and the bank should have a higher degree of regulatory
oversight.11 Additionally, some argue that the Fed’s autonomy is unconstitutional because it violates the
separation of powers doctrine of the Constitution. Because the Constitution gives Congress the power to
coin money and regulate its value, some argue that Congress should be the sole controllers of monetary
policy and they have no right to delegate it to an independent bureaucracy.12 However, economists have
argued that politicians prefer lower interest rates, which can lead to inflation. They highlight the Fed’s
ability to act on data, rather than be influenced by politics.13 If the president did have a direct influence on
the Fed’s decisions, the effects would drastically change the state of economic policy.

II. THE FED’S AUTONOMY

Most policymakers and academics argue that the central bank’s independence, often referred to as
CBI, is critical to its ability to control inflation and carry out monetary policy. Nearly all advanced
economies are governed by independent central banks whose governing bodies decide monetary policy
without political input, approval, or fear of reprisal.14 As an independent agency, the Fed makes decisions
based on the best available evidence and objective analysis, without taking politics into consideration.15
Starting in the 1970s, empirical evidence shows that the trend of most advanced economies toward CBI
has coincided with a long-term decline in inflation and well-anchored long-term expectations.16
The Fed must keep the country’s long-term interests at the forefront, but politicians may not be
best suited to take a long-term perspective. If influenced by politics, policymakers could be pressured to
overstimulate the economy through expansionary policy, which seeks to boost demand through monetary
and fiscal stimulus. Although expansionary policy may lead to short-term political and employment gains,
it is directly related to inflation and can cause higher prices later on.17 Fed policies operate over a
significantly longer period than politically motivated policies. Monetary policies may take months or even
years to fully impact the economy, and policymakers must take this substantial lag into account with a

8
“The Fed Explained: What the Central Bank Does,” 2021.
9
Presidential Search Frequently Asked Questions,
https://www.newyorkfed.org/medialibrary/media/aboutthefed/presidential-search/faqs.pdf.
10
Dan Blystone, “Why Is the Federal Reserve Independent?,” Investopedia, December 27, 2023,
https://www.investopedia.com/articles/investing/041515/why-federal-reserve-independent.asp.
11
Dan Blystone, “Why Is the Federal Reserve Independent?,” Investopedia, 2023.
12
Alex Pollock, “How Does the Federal Reserve Fit into Our Constitutional Order?,” The Federalist Society,
January 2024, https://fedsoc.org/commentary/fedsoc-blog/how-does-the-federal-reserve-fit-into-our-constitutional-
order.
13
Alex Pollock, “How Does the Federal Reserve Fit into Our Constitutional Order?,” The Federalist Society, 2024.
14
“The Importance of Central Bank Independence,” The White House, May 23, 2024,
https://www.whitehouse.gov/cea/written-materials/2024/05/22/the-importance-of-central-bank-
independence/#_ftn1.
15
Chair Jerome H. Powell, Testimony on the Semiannual Monetary Policy Report to the Congress, Board of
Governors of the Federal Reserve System, July 10, 2019,
https://www.federalreserve.gov/newsevents/testimony/powell20190710a.htm.
16
“The Importance of Central Bank Independence,” The White House, May 23, 2024.
17
The Investopedia Team, “Expansionary Fiscal Policy: Risks and Examples,” Investopedia, June 2024,
https://www.investopedia.com/terms/e/expansionary_policy.asp.
 46

long-term perspective. Overall, political interference in monetary policy could cause undesirable boom-
bust cycles that lead to a less stable economy and higher inflation.18
CBI also contributes to the Fed’s credibility, which is important for maintaining long-term
expectations. Central banks regularly commit to maintaining lower inflation in the long term and this
commitment is generally seen as credible by the public, causing lower inflation expectations.19 Political
influence on the Fed could reduce its credibility due to the risk of short-term expansionary policies
inconsistent with long-term price stability. When people have less trust in the Fed to fulfill its goals over
the long term, it can create expectations of higher inflation.
Acting on data and analysis, taking a long-term perspective, and upholding the Fed’s credibility
all contribute to CBI's efficiency. The Fed’s policy decisions are meant to be separate from the
government, and policy moves do not have to be ratified by the President or anyone else in the federal
government.20 The Fed has enjoyed this form of autonomy since the Monetary Accord of 1951 was
passed into law.
Congress sets the goals of monetary policy, and the bank is responsible for fulfilling them. The
Fed demonstrates its commitment to achieving its goals by being transparent about policy strategy and
economic outlook. To uphold accountability, the Fed releases extensive reports on the economy to
Congress semi-annually and the FOMC releases a statement after each of its eight-yearly meetings that
explains the Committee’s policy decision and reports the vote on that decision.21 Transparency allows the
government to hold the bank accountable and also increases the effectiveness of policy; by providing
clarity about the aims of future monetary policy and about how the central bank would react under
various economic circumstances, the Fed “reduces uncertainty and--by helping households and firms
anticipate central bank actions--amplifies the effect of monetary policy on longer-term interest rates.”22
The bank and the federal government must work together to achieve economic goals, and the clarity
afforded by Fed transparency increases the ability of policymakers to influence economic growth and
inflation.

III. THE FED AND THE PRESIDENT

The Fed did not always have the level of autonomy it has today. It was originally intended to be
independent of the government, but the executive branch significantly influenced monetary policy
decisions in the four decades following the Fed’s 1913 creation. The Secretary of the Treasury and the
Comptroller of the Currency were members of the Fed’s Board of Governors and presided over
meetings.23 When the US entered WWI in 1917, the Fed’s main function was financing the war effort by
offering loans to banks at a discounted rate to stimulate demand for Treasury bonds.24
During his 1920s presidency, Herbert Hoover attempted to use his political influence to
encourage the Fed to raise interest rates, yet interest rates were cut.25 In 1929 the stock market crashed
and Hoover pressured the Fed to cut interest rates; instead, the Fed “raised rates, froze borrowing, and

18
Chair Ben S. Bernanke, “Central Bank Independence, Transparency, and Accountability,” Board of Governors of
the Federal Reserve System, May 26, 2010,
https://www.federalreserve.gov/newsevents/speech/files/bernanke20100525a.pdf.
19
Chair Ben S. Bernanke, “Central Bank Independence, Transparency, and Accountability,” 2010.
20
Dan Blystone, “Why Is the Federal Reserve Independent?,” Investopedia, December 27, 2023.
21
Chair Ben S. Bernanke, “Central Bank Independence, Transparency, and Accountability,” 2010.
22
Chair Ben S. Bernanke, “Central Bank Independence, Transparency, and Accountability,” 2010, p. 12.
23
Stephen Slivinski, “The Evolution of Fed Independence,” Richmond Federal Reserve, 2009,
https://www.richmondfed.org/-
/media/richmondfedorg/publications/research/econ_focus/2009/fall/pdf/federal_reserve.pdf.
24
Stephen Slivinski, “The Evolution of Fed Independence,” 2009.
25
Bill Schmick, “Presidents Have a Long History of Fed Bashing,” The Berkshire Eagle, August 19, 2024,
https://www.berkshireeagle.com/business/presidents-history-bashing-fed-chair/article_f27531be-5e3a-11ef-a48a-
c764f061aae7.html.
 47

tipped the country and the world into the Great Depression.”26 The Fed’s contractive policies prolonged
and contributed to the severity of the decline, and if Hoover had more power over the Fed, the economy
may have fared better during this era. The White House and Congress took over monetary policy from
1933 until the Fed’s independence was officially recognized in 1951.27
When the US entered WWII in 1941, the Fed was again used to finance war efforts more cheaply.
The Fed cooperated with the Treasury and kept rates low to stimulate the economy and allow the
government to run up substantial debt at a lower cost.28 According to then-Fed Chair Marriner Eccles, the
Fed “merely executed Treasury decisions.”29 After the war ended in 1945, interest rates were kept low to
support the government in repaying the substantial war debt. Climbing inflation and the Fed’s frustration
with the fiscal demands of the Treasury led to a congressional intervention and the Treasury-Federal
Reserve Accord of 1951.30 The Accord affirmed separation between the Fed and Treasury, granting the
Fed authority over interest rates and autonomy in its monetary policy decisions.31
While many politicians have tried and succeeded in influencing the central bank even after the
Accord, the central bank has closely guarded its independence. It has mostly been left alone for the past
25 years, but Donald Trump abandoned this norm. As president, he often expressed his frustrations with
Fed Chair Powell; Trump repeatedly called for lower interest rates while Powell either kept rates the same
or raised them on various occasions.32 Trump has defended his criticism of Powell and the Fed, saying
that “it’s fine for a president to talk (about interest rates)... it doesn’t mean that (the Fed) has to listen.”33
Trump has expressed a desire to eventually reform the Fed. It is unclear what exactly he has in
mind, but several proposals from Trump allies and staffers have been made public. Trump’s running-
mate, JD Vance, has made clear that they believe public opinion should determine monetary order, saying
“if the American people don’t like our interest rate policy, they should elect somebody different to change
that policy. Nothing should be above democratic debate in this country.”34 Additionally, Trump allies
argue that the president should be consulted on interest rate decisions as a member of the rate-setting
committee; the Fed chair would meet with the president and negotiate with the FOMC to steer policy on
the president’s behalf.35 Although Fed experts and at least some Trump advisors do not expect the
president-elect to attempt to remove Powell before the end of his term in 2026, there is no statute about
whether a president could remove a Fed chair.36 No president has attempted to remove a Federal Reserve
chairman from their role before, but Trump could be the first to legally test this power if his unhappiness
with Powell continues.

26
Bill Schmick, “Presidents Have a Long History of Fed Bashing,” 2024, p. 6.
27
Stephen Slivinski, “The Evolution of Fed Independence,” 2009.
28
Ashley Kloenhamer, Esq, “Feature the U.S. Department of the Treasury and the Federal Reserve System,”
Lexisnexis, 2022.
29
Stephen Slivinski, “The Evolution of Fed Independence,” 2009, p. 2.
30
Stephen Slivinski, “The Evolution of Fed Independence,” 2009.
31
Ashley Kloenhamer, Esq., “Feature the U.S. Department of the Treasury and the Federal Reserve System,” 2022.
32
Rebecca Ballhaus, “Trump Says Federal Reserve ‘Doesn’t Know What It Is Doing,’” Wall Street Journal, June 24,
2019,https://www.wsj.com/articles/trump-says-federal-reserve-doesn-t-know-what-it-is-doing-
11561381446?mod=article_inline.
33
Rashard Rose, “Trump backs off earlier claims that he should directly control interest rates,” CNN, August 20,
2024, https://www.cnn.com/2024/08/20/business/trump-federal-reserve-independence/index.html.
34
Anna Gordon, “Trump and Vance Want More Control Over the Federal Reserve. Economists Are Worried,”
Time, August 12, 2024, https://time.com/7010213/donald-trump-federal-reserve-politics/.
35
Andrew Restucciam, Nick Timiraos, and Alex Leary, “Trump Allies Draw Up Plans to Blunt Fed’s
Independence,” Wall Street Journal, April 26, 2024, https://www.wsj.com/economy/central-banking/trump-allies-
federal-reserve-independence-54423c2f.
36
Antonio Pequeño, “Can Trump Fire Jerome Powell? Fed Chairman Says He Won’t Resign If Trump Asks,”
Forbes, November 2024, https://www.forbes.com/sites/antoniopequenoiv/2024/11/07/can-trump-fire-jerome-powell-
fed-chairman-says-he-wont-resign-if-trump-asks/.
 48

Project 2025, an organized effort not directly affiliated with Trump but overseen by several
former Trump advisors, offers some additional insight into what a Trump presidency could mean for the
Fed. The project calls for increased operational effectiveness by dropping the Fed’s mandate on full
employment and “limiting the Fed’s mandate to the sole objective of stable money”37. The project argues
that the dual mandate contributes to recessions rather than fixes them, and the Fed should focus on
restraining inflation.38 It also supports a Congressional limit placed on the Fed’s balance sheet to shrink it
to what existed historically before the 2008 financial crisis.39 The Fed’s asset ownership has blown up
from less than $1 trillion before 2008 to nearly $9 trillion today. Project 2025 argues that a lack of
oversight of the types and amount of assets purchased by the Fed has led to politically favored markets
and subsidizing federal deficits; for example, the Fed’s purchase of mortgage securities contributes to
rising housing costs.40 Overall, Project 2025 proposes restricting the Fed’s open market operations to
Treasuries, winding down the Fed’s balance sheet, and eliminating the dual mandate. For better or worse,
these initiatives would grant the executive branch significantly more control over monetary policy.
Powell and most economists maintain that central bank independence is essential to the Fed’s
credibility and economic performance. Historically, political influences on the Fed have led to runaway
inflation and boom-bust cycles. An independent central bank is the norm within the global economy.41
Still, the U.S. Constitution does not explicitly grant the government the power to create a central bank.
Later cases granted Congress this power, but those who follow a strict interpretation of the Constitution
could argue that Congress never had the authority to create a central banking system like the Fed, and
monetary policy should be controlled by Congress alone.42

IV. THE FED AND THE CONSTITUTION

In response to Richard Nixon’s controversial presidency and the Watergate scandal, Congress
enacted the Ethics in Government Act of 1978. The Act created a special court responsible for the
appointment of an "independent counsel" to investigate,. and, if necessary, prosecute government
officials, including the President, for certain violations of federal criminal laws.43 The Attorney General
and the Department of Justice could not intervene in any matters under the independent counsel's
control.44 The constitutionality of this Act was challenged in Morrison v. Olson, specifically whether or
not a special counsel with the "full power and independent authority to exercise all investigative and
prosecutorial functions and powers of the Department of Justice [and] the Attorney General" could
operate independently of the President.45
In his dissent of Morrison v. Olson, Supreme Court Justice Antonin Scalia argues that the
appointment of an independent counsel violated the separation of powers doctrine of the constitution
because: (1) the operations in question are a purely executive power and (2) the statute deprives the
executive branch of exclusive control over that power.46 The conduct of criminal prosecutions is an
executive power, and appointing an independent outside of presidential supervision deprives the

37
Project 2025, “Mandate for Leadership 2025: The Conservative Promise,” The Heritage Foundation, 2023,
https://static.project2025.org/2025_MandateForLeadership_FULL.pdf, p. 732.
38
Project 2025, “Mandate for Leadership 2025: The Conservative Promise,” 2023.
39
Project 2025, “Mandate for Leadership 2025: The Conservative Promise,” 2023.
40
Project 2025, “Mandate for Leadership 2025: The Conservative Promise,” 2023, p. 734.
41
“The Importance of Central Bank Independence,” The White House, May 23, 2024.
42
Justin Walton, “Why Do Some People Claim the Federal Reserve Is Unconstitutional?,” Investopedia, October
2021, https://www.investopedia.com/ask/answers/082115/why-do-some-people-claim-federal-reserve-
unconstitutional.asp#toc-congress-seeks-transparency-and-accountability.
43
"Morrison v. Olson," Oyez, https://www.oyez.org/cases/1987/87-1279.
44
Morrison v. Olson," 487 U.S. 654 (1988)
45
Morrison v. Olson," 487 U.S. 654 (1988)
46
Morrison v. Olson," 487 U.S. 654 (1988)
 49

executive branch of at least some of this power. Article XXX of the Massachusetts Constitution of 1780
states "the legislative department shall never exercise the executive and judicial powers, or either of them:
The executive shall never exercise the legislative and judicial powers, or either of them…”47 Justice
Scalia emphasizes in his dissent that “this does not mean ‘some’ of the executive power, but all of the
executive power.”48 All legislative power is given to the legislative branch, all judicial power is given to
the judicial branch, and all executive power is given to the executive branch. Because the independent
counsel removed some of this power from the president (and the attorney general) and authorized it to
someone they had limited discretion over, Scalia argued that the council was unconstitutional and
substantially disrupted the balance of power between the branches of government.
The Court conceded that criminal prosecutions were an executive function and that the
independent counsel deprived the executive branch of exclusive control.49 Still, the majority decided that
control over the independent counsel was not central to the executive branch's functions, and the president
could perform his full duties without full control. The majority also emphasized that the attorney general
could remove the independent counsel for good cause, and the attorney general is under presidential
supervision. However, when the statute came up for renewal in 1999, the majority opinion was widely
condemned. Attorney General Janet Reno of the Clinton administration described it as “structurally
flawed… within our constitutional framework” and instead supported Justice Scalia’s dissent.50
The special counsel in Morrison v. Olson has similarities to the present-day Fed. The main
difference is that the special counsel performed executive functions, while the Fed performs legislative
functions. Using the same framework that Justice Scalia used in Morrison, delegating monetary policy to
the Fed could be unconstitutional if: (1) monetary policy is a purely legislative power and (2) an
independent central bank like the Fed deprives the legislative branch of exclusive control over that power.
Article 1 Section 8 of the Constitution establishes the Enumerated Powers of Congress, and Clause 5
gives Congress the exclusive power to coin money and the authority to regulate every aspect of
currency.51 The Constitution does not explicitly authorize Congress to charter a central bank, and having
one could be viewed as depriving Congress of exclusive control over monetary policy. Additionally,
while the Fed is under Congressional supervision, it operates mostly independently. Officials are
nominated by their regional bank’s Board of Directors rather than the government, and once appointed, it
can be difficult for the government to remove them.
In McCulloch v. Maryland (1819), the Supreme Court ruled that Congress had the power to
establish a national bank under the Necessary and Proper Clause, the last enumerated power. This clause
is used to expand Congressional power by allowing Congress to make all laws that are “necessary and
proper” to carry out their responsibilities. While the government can carry out its enumerated powers
without a central bank, making it seem unnecessary, this case redefined necessary to mean “appropriate
and legitimate” and found that the federal government chartering a bank fit within this description.
Stretching the limits of the federal government past its explicitly delegated powers can be a slippery
slope. How far can the Necessary and Proper Clause stretch federal power? How unconstitutional is too
unconstitutional?

V. CONCLUSION
Politicizing the Federal Reserve could be harmful regardless of which party is in charge. Keeping
inflation down while maximizing employment can lead to the Fed making decisions that increase the risk

47
Morrison v. Olson," 487 U.S. 654 (1988)
48
Morrison v. Olson," 487 U.S. 654 (1988)
49
Morrison v. Olson," 487 U.S. 654 (1988)
50
Adrian Vermeule, “Morrison v. Olson Is Bad Law,” Lawfare Media, June, 2017,
https://www.lawfaremedia.org/article/morrison-v-olson-bad-law.
51
U.S. Constitution, art. 2, sec. 1, cl. 3.
 50

of recession in the short run for better outcomes in the long run.52 Through an independent central bank,
economists and other experts may resist political influences and act on data to better address long-term
economic objectives and execute policies that are politically unpopular but serve a greater public
interest.53
Most experts agree that an independent Fed can manage monetary policy more effectively than
one subject to politics. The problem is that the Fed’s powers are derived from Congress’s enumerated
powers. The Tenth Amendment states ‘all powers not delegated to the United States, by the Constitution,
nor prohibited by it to the States, are reserved to the States or to the people.’54 As it is currently, Fed
leadership is mostly chosen by the regional banks’ directors, rather than the President, Congress, or the
public. Further, the writers of the Constitution debated and rejected delegating the power to charter
corporations, yet the ruling in McCulloch v. Maryland granted Congress this power less than fifty years
later.55
The McCulloch v. Maryland ruling was based on implied powers granted through the Necessary
and Proper Clause. A loose definition of “necessary” opens the door to seemingly unlimited government
power; virtually anything could be seen as legitimate or helpful to certain government endeavors.56
Ironically, during the ratification debates, opponents of the Constitution were worried that the Necessary
and Proper Clause would be construed in this way.57 The writers of the Constitution assured people that
the government's powers would be limited and specific. Under this type of limited government promised
by supporters of the Constitution during ratification, there likely would not be a central bank.58
The Fed must perform a balancing act between constitutionality and effectiveness. On the one
hand, political influences have historically had a negative impact on inflation and an independent Fed can
better regulate monetary policy. On the other hand, the government currently has extremely limited
discretion over Fed leadership and how the bank manages monetary policy. Additionally, whether or not
the Constitution enables Congress to delegate monetary policy to a central bank is a bit of a gray area.
President-elect Trump may attempt to exert his influence on the Fed, potentially making it more aligned
with the language of the Constitution. However, it is unclear what specific actions Trump would take and
how they would affect the Fed’s effectiveness. Still, the fact that the Federal Reserve Bank was mostly
left unbothered by presidents for the past few decades does not mean that future presidents will refrain
from trying to influence monetary policy.59 At least some reform is needed; the Fed's top-down approach
in managing monetary policy over the last 40 years, while enhancing economic growth, has also led to
significant income inequality.60 For better or worse, I expect the Fed’s independence to be subject to
debate as future presidents fight for more control over monetary policy.

52
Anna Gordon, “Economists Worry About Trump’s Push to Politicize the Fed,” Time, August, 2024,
https://time.com/7010213/donald-trump-federal-reserve-politics/.
53
Dan Blystone, “Why Is the Federal Reserve Independent?,” Investopedia, 2023.
54
U.S. Constitution, art. 2, sec. 1, cl. 3.
55
Michael Maharrey, “Hamilton vs. Jefferson: Is the Federal Reserve Constitutional?,” LinkedIn, April, 2024,
https://www.linkedin.com/pulse/hamilton-vs-jefferson-federal-reserve-constitutional-money-metals-qj8we/.
56
Michael Maharrey, “Hamilton vs. Jefferson: Is the Federal Reserve Constitutional?,” 2024.
57
Michael Maharrey, “Hamilton vs. Jefferson: Is the Federal Reserve Constitutional?,” 2024.
58
Michael Maharrey, “Hamilton vs. Jefferson: Is the Federal Reserve Constitutional?,” 2024.
59
Bill Schmick and Drew Angerer, “Presidents Have a Long History of Fed Bashing,” The Berkshire Eagle, August
19, 2024, https://www.berkshireeagle.com/business/presidents-history-bashing-fed-chair/article_f27531be-5e3a-
11ef-a48a-c764f061aae7.html.
60
Bill Schmick and Drew Angerer, “Presidents Have a Long History of Fed Bashing,” August, 2024.
 51

THE LEGALITY OF AMERICAN HOMESCHOOLING

Caitlin Gallagher

I. INTRODUCTION
Homeschooling is often presented as an alternative option for parents who are looking for
something more personalized and catered to their children’s needs than public schooling. For some
families, this can absolutely be true. However, it seems that homeschooling can be a pathway for abuse,
social isolation, and delayed development for many children. Take, for example, Hope, a woman who was
homeschooled in the early 2000s in Minnesota. She describes her education as being severely limited -
mostly she was given textbooks and was told to “teach herself through them.” Neither of her parents were
qualified to educate her, and Hope and her four siblings were scarcely allowed to escape their physically,
emotionally, and sometimes sexually abusive parents. In describing her nightmarish situation, Hope
writes, “I don’t even know how many people knew we existed, since we were never allowed to make
friends at a park, or go anywhere by ourselves, or ever, ever speak to an adult who wasn’t our parent.”1
Hope’s experience, along with the experiences of many homeschooled students that have spoken
about their experience, raise the question: how have parental rights come to outweigh the rights of
children to a safe environment and a robust education? Although some may view Hope’s story as one of
success - she graduated from college magna cum laude and is now pursuing a masters’ degree, it is clear
that there are fundamental flaws within the American homeschooling system. This article will argue that
while Courts were correct in ruling that parents have the right to educate their children, new regulations
regarding homeschooling need to be imposed to ensure that parents are still able to educate their children,
but that their children’s rights are not being restricted by their decision to homeschool.

II. A BRIEF HISTORY OF AMERICAN HOMESCHOOLING

While some may believe that the rise of homeschooling families is the result of the COVID-19
pandemic, attempting to trace the true roots of homeschooling can prove to be quite difficult. Various
cultural groups throughout history have believed that the most important and effective teaching happens
at home. For example, in the Native American education system, “learning from elders through example
was typically the only way in which children were educated.”2 However, for the purposes of
understanding the current landscape of American homeschooling, it is useful to look at the more modern
revival of parental desire to homeschool.
Modern homeschooling began gaining traction in the 1960s and the 1970s. The growth of this
seemingly new ideology was due in large part to the ideas of John Holt, a prominent philosopher of
education at the time.3 Holt graduated with an engineering degree from Yale University in 1943, but still
considered his formal, in-classroom education to be largely useless. Of his schooling, Holt said, “May I
say instead that most of what I know I did not learn in school, and indeed was not even 'taught.'”4 In order
to help other people from falling into what he considered to be the “trap” of formal education, Holt began
researching and writing about homeschooling.5 Although he was joined by other philosophers, Holt’s

1
Coalition For Responsible Home Education. n.d. “Hope M.: “I don’t even know how many people knew we
existed.”” responsiblehomeschooling.org. Accessed November, 2024. https://responsiblehomeschooling.org/hope-
m-i-dont-even-know-how-many-people-knew-we-existed/.
2
Knowles, J., Stacey E. Marlow, and James A. Muchmore. 1992. “From Pedagogy to Ideology: Origins and Phases
of Home Education in the United States, 1970-1990.” American Journal of Education 100, no. 2 (February): 195-
235. https://doi.org/10.1086/444014.
3
Gaither, M.. "John Holt." Encyclopedia Britannica, September 10, 2024.
https://www.britannica.com/biography/John-Holt.
4
Growing Without Schooling. n.d. “Who Was John Holt?” John Holt GWS. Accessed November 24, 2024.
https://www.johnholtgws.com/who-was-john-holt.
5
Growing Without Schooling. n.d. “Who Was John Holt?” John Holt GWS. Accessed November 24, 2024.
https://www.johnholtgws.com/who-was-john-holt.
 52

work was the inspiration for many parents to pull their children out of public schooling. Critically
important to Holt’s philosophy is the idea that education should be an individual decision made by
families that is nobody’s business other than their own. In discussing this idea, Holt said, “I have come to
believe that a person's schooling is as much a part of his private business as his politics or religion, and
that no one should be required to answer questions about it.”6 This sentiment has unfortunately become
one of the guiding principles of the American homeschooling landscape. The idea that parents should be
left to their own devices to educate their children in any way they see fit is the reason for the gaps that
homeschooled children experience. This idea has expanded beyond books produced by Holt and his peers
and the mainstream media they used to reach families. It has permeated court decisions and state
legislation that continue to shape homeschooling to this day.

III. A LEGAL BEGINNING TO THE PARENTAL RIGHT TO CONTROL THEIR CHILD’S

EDUCATION: MEYER V. NEBRASKA (1923)
The legal beginnings of parental rights in education precede the popularity of John Holt’s
homeschooling movement. Although the philosophy cannot be traced back to the concept of
homeschooling directly, it has been traced back to the 1920s in cases about instruction in foreign
language. In Meyer v. Nebraska (1923), the plaintiff was a teacher who was convicted of violating a
Nebraska state law that prohibited any kind of educational instruction in a language other than English
before the eighth grade. At the time, the state of Nebraska believed the law was necessary to integrate
immigrants into American culture, as they felt that as a long as a student was instructed in the language of
their or their parents’ home country, it would “naturally inculcate in them the ideas and sentiments
foreign to the best interests of this [home] country.”7 The state also did not see a reason why an
American-born parent would want to educate their child in a language other than English, so they saw no
problem with this law.
However, when the Supreme Court was forced to reckon with the idea that parents should be able
to dictate their child’s education, they found that the state of Nebraska had overstepped its constitutional
bounds. The Supreme Court in this case aimed to decide whether the Nebraska education rule deprived
parents of their Fourteenth Amendment right to Due Process. Among other things, the Fourteenth
Amendment states that, “No State shall . . . deprive any person of life, liberty, or property, without due
process of law."8 The term “liberty” is vague, but looking to precedent, the Supreme Court decided that
“liberty” includes , “the right of the individual to contract, to engage in any of the common occupations of
life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God
according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at
common law as essential to the orderly pursuit of happiness by free men.”9 Under this doctrine of
individual freedom, the Court decided that parents had every right to shape the education of their own
children, no matter the religion, language, or culture it is shaped by. While schooling is not the only
aspect in raising children, and was never named by the Court specifically in their discussions of what
liberty entails, surely how a child learns is central enough to their rearing that is included in the definition
of liberty. It is clear that in this case, the Court agreed. To undermine an individual’s right to liberty
would be to undermine centuries of jurisprudence and American tradition, and thus the court was left with
no choice but to allow homeschooling.
In coming to their conclusion about the necessity of involving a parent in their child’s education,
Justice McReynolds writing the opinion of the Court analogized the United States to the ancient Greek
means of education. The Court pointed out that in Sparta, young men were educated homogeneously in
military training without ever knowing their parents. However, the Court argues that the aims of the two

6
Growing Without Schooling. n.d. “Who Was John Holt?” John Holt GWS. Accessed November 24, 2024.
https://www.johnholtgws.com/who-was-john-holt.
7
Meyer v. Nebraska, 262 U.S. 390 (1923)
8
Meyer v. Nebraska, 262 U.S. 390 (1923)
9
Meyer v. Nebraska, 262 U.S. 390 (1923)
 53

states are completely different. In Sparta, their educational goal was to raise strong military fighters. In
America, the educational goal is to breed critical, diverse, and democratic thinkers. In order for this
mission to be protected, the Court deemed it necessary to allow people to choose their own means of
education for themselves and their families. If any state were to interfere with this mission, it would not
only be violating the Due Process Clause, but would be violating the principle mission of American
education.

IV. A LEGAL TURNING POINT IN HOMESCHOOLING: WISCONSIN V. YODER (1972)

Another landmark case for families who were interested in home schooling their children was the
1972 Wisconsin Supreme Court Case, Wisconsin v. Yoder. In the Yoder case, members of the Old Order
Amish religion and the Conservative Amish Mennonite Church were found by a lower court to have
violated the state of Wisconsin’s formal education requirements. The state requirements stated that
children had to remain in school until the age of sixteen, which was not what was happening within the
Amish communities. Children in Amish communities typically terminate their in-classroom education
after completion of the eighth grade. Rather than denying the allegation that they had violated the state
law mandating that their children attend school for a longer period of time, parents of these Wisconsin
Amish communities argued that the state’s legal education requirements were categorically
unconstitutional.
The Amish communities claimed that the state education requirements violated the Free Exercise
Clause of the First Amendment of the Constitution. Although this clause specifies the actions that
Congress is able to take, the provisions of the Clause and the Amendment as a whole are not to
be violated by state legislative bodies either a as laid out in the 14th Amendment. The 14th
Amendment makes clear that no person will be deprived of their life, liberty, or property without
due process.10 The Amish parents in this case argued that public schooling past the eighth grade
was incompatible with the Amish way of living. After explaining the history of their religion and
way of living, they explained that the nature of the Amish faith is not entirely compatible with
the public schooling system, and that it is important that their children receive proper religious
instruction.11 Due to this reasoning it was clear to the community, and ultimately to the U.S. Supreme
Court, that the Amish way of living was incongruent with public schooling. Even if the Court did not
agree with the Amish way of life, they were left with no choice but to find that state rule impinged on the
Amish community’s ability to educate their children how they saw fit. In their decision, they wrote, “The
State's interest in universal education is not totally free from a balancing process when it impinges on
other fundamental rights.”12 It is clear that it is essential to the Amish religion to homeschool their
children, and if the Court were to rule in this case that they were no able to do so, it would certainly
impinge of their ability to practice their religion, no matter how strong the State feels that they should
receive public education.

V. MODERN LEGISLATION GOVERNING HOMESCHOOLING

The more laissez-faire approach to homeschooling has extended beyond court decisions to both
federal and state legislation governing how parents are able to educate their children. Statutes and state
legislation have not been immune to the decisions rendered by courts throughout American history. In the
same vein as the two pivotal decisions in Meyer v. Nebraska and Wisconsin v. Yoder, legislation has often
taken a hands-off approach to governing how parents choose to educate their children. Perhaps the best
example of this is the difference between states in homeschooling legislation. Only New York,
Massachusetts, Rhode Island, and Pennsylvania have state regulations that “require parents to send
notification or achievement test scores and/or professional evaluation, plus other requirements (i.e.,

10
U.S. Constitution Amend. 14.
11
Wisconsin v. Yoder, 92 S.Ct. 1526 (1972)
12
Wisconsin v. Yoder, 92 S.Ct. 1526 (1972)
 54

curriculum approval by the state, teacher qualification of parents, or home visits by officials).”13 By
contrast, in eleven states, parents are under no requirement to even notify their local school district or a
governmental agency that they are removing their child from an in-classroom public school environment
and substituting it with a homeschooling model14. There are no legally required curriculum guidelines or
approval necessary, no testing requirements, no educational benchmarks, or supervision for children in
these situations by anyone other than their parents. The rest of the states fall somewhere in the middle of
these two extremes, but the majority of them fall on the side of less regulation. Twenty-three states, while
they do more than the bare minimum, only require a notice of withdrawal from public schooling. In these
states, there is still no requirement for curriculum, hours spent in school, or testing.15 Given the lack of
requirements, it is clear that states have adopted the spirit of taking the side of parental freedom as
opposed to rigid educational standards.

VI. ANALYSIS
The right to make decisions about education for yourself and for your children is quintessentially
American. American tradition is rooted in freedom from state interference in daily life, and to limit these
freedoms would be to misunderstand what it means to enjoy the rights of being an American. However, it
seems that rather than overstepping their bounds with legislation, states would prefer to take an almost
completely laissez-faire approach to education. The American tradition of freedom is an important
concern, but it is also true that freedom and the wellbeing of young students can be protected at the same
time. America values choice of education and believes it is vital to the success of a healthy democracy,
but to what end? Even courts have struggles to identify a limiting principle when it comes to the freedom
of parents to homeschool their children. If parents are given no limits to what they choose to teach their
children, or in some cases not even teach them at all, are they even choosing education, or are they
choosing ignorance for their children?
Hope’s story proves that the right her parents had to make decisions about her education was
mishandled. One could even set aside the fact that she fell behind her peers developmentally as this could
have just as well happened in public school given the different learning capacities of different children.
Critically, Hope missed out on one of the greatest freedoms a sufficient education can give a child: the
option to explore viewpoints that differ from the ones you are raised to believe. Looking to Justice
McReynolds opinion back in 1923 for guidance on this issue, he identified the right to acquiring useful
knowledge as synonymous with a person’s right to liberty. Hope herself explained that she was denied
access to important knowledge about mathematics and science. She admitted that she was unable to
complete any substantial Algebra course or gain access to any source that relayed reliable information
about climate change. Perhaps gaining proficiency in Algebra may not be meaningful to a person’s
everyday life, but being denied the option to even explore that area of interest seems like a blatant
disrespect to the same Constitutional rights that parents are afforded.
This is not to say that all homeschooling deprives children of their rights. Homeschooling can be
helpful, and sometimes even life changing, for children who have learning disabilities, children who get
bullied, or in circumstances where home may be a safer environment than school, but without regulation,
it can be an egregious violation of a child’s Constitutional rights. While courts have made it clear that
education must be a personal decision, there must be a balance struck that keeps children from slipping
through the cracks of the educational system. The Court attempted to strike this balance in Murphy v.
Arkansas (1988). In that case, which concerned state-imposed schooling standards even if a child was
homeschooled, the Court struck more of a balance between the right to homeschool and the state’s

13
Home School Legal Defense Association. n.d. “Homeschool Laws By State.” HSLDA. Accessed November 24,
2024. https://hslda.org/legal.
14
Home School Legal Defense Association. n.d. “Homeschool Laws By State.” HSLDA. Accessed November 24,
2024. https://hslda.org/legal.
15
Home School Legal Defense Association. n.d. “Homeschool Laws By State.” HSLDA. Accessed November 24,
2024. https://hslda.org/legal.
 55

interest in imposing educational standards. The decision outlines a more discerning rule that has been
used in subsequent cases regarding homeschooling. The rule explains that the government is allowed to
interfere with a claimant’s “sincerely held religious beliefs” as long as their action is the “least restrictive
means” of achieving a governmental interest.16 While not in complete opposition to previous decisions,
this standard does give states more leeway to dictate what standards of education parents must reach if
they wish for their children to be homeschooled. However, no Court can mandate that states impose these
rules at all. Thus, we are still left with the problem that states can have no educational standards for those
learning at home at all. It seems that this rule has allowed some willing states to impose educational
standards, however, the country as a whole is still far from universal regulations that would protect
students from falling through the cracks.
This would not mean a complete federal ban on homeschooling—both the Supreme Court and
courts throughout the country have made it clear that this is not an option given the provisions of our
Constitution. The solution to this problem is not a complete elimination, but rather a set of education
standards that would be necessary for students to experience. This set of requirements would mirror the
requirements of the four states that already have rigorous requirements for homeschooled children. These
states do not overstep their Constitutional bounds as they do not mandate what is taught, they just
mandate that their respective Departments of Education must review and approve what is being taught.
By doing this, parental rights to choose how their children are educated are still protected, but there is still
mindfulness of children’s equal right to an education that matches that of their peers in “regular”
schooling. In the same way the courts had to intervene to protect parents’ Constitutional rights, the onus is
on the states to do the same thing for homeschooled children. Without this stopgap, stories like Hope’s
will continue to be commonplace for the sake of the parental right of choice to education.

16
Murphy v. Arkansas, 852 F.2d 1039 (8th Cir. 1988)
 56

THE FIRST STEP ACT: DIFFERING APPROACHES TO CRIME REDUCTION OVER TIME
Emily Gill

I. INTRODUCTION
The Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act,
or First Step Act, is a bipartisan crime bill enacted in 2018 under the 115th Congress. The Federal Bureau
of Prisons (BOP) states that the goal of this act is to “reduce the size of the federal prison population
while also creating mechanisms to maintain public safety.”1 The objectives of the First Step Act are to
reform prison and sentencing practices as a means for reducing crime, recidivism rates, and the
incarcerated population.2 As of 2016, the eight-year recidivism rate in federal prisons was 49.3%.3 Due to
such high rates of reoffending in the United States, a large portion of the crime rate is made up of repeat
offenders. While the First Step Act has made great strides in reducing recidivism rates, especially
compared to past crime bills, its lack of influence over state prison systems, racial discrepancies, and
limitations to specific offenses are weaknesses that need to be addressed for the First Step Act to be
entirely successful in it accomplishing its objectives.

II. HISTORY OF AMERICAN CRIME BILLS

The First Step Act follows a long line of American crime bills. One of the first comprehensive
crime bills in the United States was the Omnibus Crime Control and Safe Streets Act of 1968, which was
passed as part of the Johnson administration’s “war on crime.” The overall goal of the Omnibus Crime
Bill was to “prevent crime and to ensure the greater safety of the people, [and] law enforcement.”4 This
bill addressed crime under the belief system that increasing police presence and surveillance, as well as
increasing penalties for petty crimes and sentence length, would reduce crime. However, this is not the
case; while arrest and incarceration rates drastically increased, crime rates did not see proportional
decreases.5 Stricter policing and more arrests does not mean that there is less crime overall.6 The Omnibus
Crime Bill has been amended many times since its signing into law, but the overall goals of empowering
law enforcement have remained.
Subsequently, in 1976, the Crime Control Act was passed. This bill both amended sections of the
Omnibus Crime Bill and created new provisions. Like the Omnibus Crime Bill, empowering law
enforcement was a large focus of the Crime Control Act, but there was a newly recognized importance of
community engagement. One provision of the act was to “provide appropriate technical assistance to
community and citizens groups to...encourage community and citizen participation in crime prevention
and other law enforcement and criminal justice activities.”7 However, community-oriented policing,
which includes police building relationships with communities, citizen’s patrols, and neighborhood
watches, have had inconclusive results in reducing crime. One particular meta analysis studying the effect

1
“An Overview of the First Step Act,” BOP: First Step Act Overview, accessed 2024,
https://www.bop.gov/inmates/fsa/overview.jsp#:~:text=The%20First%20Step%20Act%20requires,needs%20and%2
0reduce%20this%20risk.
2
First Step Act, Pub. L. No. 115–391 (2018), https://www.congress.gov/115/plaws/publ391/PLAW-115publ391.pdf
3
Kim Steven Hunt, Recidivism Among Federal Offenders: A Comprehensive Overview, March 2016,
https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-
publications/2016/recidivism_overview.pdf.
4
Omnibus Crime Control and Safe Streets Act, Pub. L. No. 90-351, 82 Stat. 197, Title I (1968).
https://transition.fcc.gov/Bureaus/OSEC/library/legislative_histories/1615.pdf
5
Lisa Ly, “Federal Policies and Mass Incarceration in America,” Policy Perspectives 30 (2023): 1–14,
https://doi.org/10.4079/pp.v30i0.03.
6
Joseph Margulies and Lucy Lang, “Prosecutors and Responses to Violence,” Community_Trust_9, November
2019, https://vrnclearinghousefiles.blob.core.windows.net/documents/JJC_Prosecutors_Violence.pdf.
7
Crime Control Act of 1976, Pub. L. 94-503, https://www.congress.gov/94/statute/STATUTE-90/STATUTE-90-
Pg2407.pdf
 57

of community-oriented policing on crime reduction saw that in both property and violent crimes there was
a wide variety of correlation with crime reduction.8
The Crime Control Act also attempted to reduce crime by reducing drug use. Through this act,
programs were developed to identify particular needs of “drug-dependent” individuals, which included
“alcoholics, alcohol abusers, drug addicts, and drug abusers.”9 Another large portion of this bill dealt with
the funding of state and local governments to be able to create these programs. The Crime Control Act,
while still very focused on increasing law enforcement as a means to reduce crime, differed from past
bills by including some provisions that targeted external causes, such as drug use, for crime.
In 1984, the Comprehensive Crime Control Act was passed under the Reagan administration.
This act increased bureaucratization in the Department of Justice (DOJ) by establishing agencies such as
the Office of Justice Practices, Bureau of Justice Assistance, Bureau of Justice Statistics, and the United
States Sentencing Commission.10 The intent of this was to expand research, standardize particular
procedures (such as sentencing procedures), and expand President Ronald Reagan’s “tough on crime”
policies. Parole was eliminated, the government’s power to forfeit assets was expanded, and mandatory
minimum sentences for drug offenses were established.11 This bill is a clear example of increased
punishment and policing being used as a way to prevent crime. However, incarceration—a criminalizing
factor—is expanded through such policies, effectively increasing or maintaining crime rates.12
Next, Congress enacted the Crime Control Act of 1990, which again amended sections of the
Omnibus Crime Control Act of 1968 and implemented new strategies to reduce crime. The Omnibus
Crime Act was amended to create harsher penalties for drug and violent crimes and expand federal
funding to support state and local governments in crime reduction.13 However, this bill implemented more
progressive crime policies, such as addressing criminal justice through reform rather than increased
punishment. Unlike past bills, the Crime Control Act mentions recidivism explicitly, stating that its goal
is to reduce recidivism and decrease the cost of incarceration by way of this reduction.14 While measures
to reduce recidivism are mentioned—such as alternatives to incarceration, more “appropriate”
intervention, and proportional sanctions—its harsh approach to policing and sentencing is incompatible
with its goal of reducing recidivism.
Following the Crime Control Act, the Violent Crime Control and Law Enforcement Act of 1994
was passed by President Bill Clinton. This act was the most comprehensive crime bill in the United States
at this time and continued the “tough on crime” approach previous bills had taken. This was seen through
drastic increases in funding for hiring more police officers and building more prisons, as well as the
implementation of a three strike law for drug or violent offenders. Additionally, the punishment for drug,
gang, and violent offenses was made much harsher, as were mandatory minimums, and states were
incentivized to have offenders serve a majority of their sentence rather than have early releases on

8
Charlotte Gill et al., “Community-Oriented Policing to Reduce Crime, Disorder and Fear and Increase Satisfaction
and Legitimacy among Citizens: A Systematic Review,” Journal of Experimental Criminology 10, no. 4 (August 2,
2014): 399–428, https://doi.org/10.1007/s11292-014-9210-y.
9
Crime Control Act of 1976, Pub. L. 94-503, https://www.congress.gov/94/statute/STATUTE-90/STATUTE-90-
Pg2407.pdf
10
Comprehensive Crime Control Act of 1984, Pub. L. 98-473,
https://www.ojp.gov/pdffiles1/Digitization/123365NCJRS.pdf
11
Nichole McCarthy, “Comprehensive Crime Control Act of 1984,” Comprehensive Crime Control Act of 1984 |
Wex Legal Dictionary / Encyclopedia | LII / Legal Information Institute, July 29, 2024,
https://www.law.cornell.edu/wex/comprehensive_crime_control_act_of_1984#:~:text=It%20represented%20the%2
0first%20comprehensive,for%20the%20federal%20prison%20system.
12
Elaine R Jones, “The Failure of the ‘Get Tough’ Crime Policy,” University of Dayton Law Review, 26, 20, no. 2
(1995): 803–8, https://ecommons.udayton.edu/cgi/viewcontent.cgi?article=2180&context=udlr.
13
Crime Control Act of 1990, Pub. L. 101-647, https://www.ojp.gov/pdffiles1/Digitization/140616NCJRS.pdf
14
Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322,
https://www.govinfo.gov/content/pkg/COMPS-10824/pdf/COMPS-10824.pdf
 58

parole.15 Aside from its harsh crime policies, the bill also included provisions for grants regarding
juvenile crime prevention, and heavily focused on the impact of violence on victims, specifically
women.16
Moreover, the Violent Crime Control Act included the Federal Death Penalty Act of 1994, which
expanded the crimes the death penalty could be used for to include drug-offenses that resulted in death.17
It was thought that the death penalty would be a deterrence to crime; if drug and other violent crimes
result in the death penalty, they are less likely to happen. However, it has been shown that the death
penalty does not decrease crime, in fact there may actually be a positive correlation between the two.18
Overall, the policies of this bill heavily contributed to mass incarceration by increasing policing (and thus
arrest and incarceration rates), as well as increasing sentencing length.
One of the most recent crime bills leading up to the First Step Act was the Fair Sentencing Act of
2010. This act amended the Controlled Substances Act by getting rid of mandatory minimums for
possession or usage of crack cocaine and reduced the provision that treated crack to powder cocaine in a
100:1 ratio to 18:1.19 Historically, crack cocaine offenses were primarily imposed on Black individuals, so
the harsher punishments imposed by this ratio caused unfairly longer sentences for Black defendants.20,21
The Fair Sentencing Act worked to correct this racially biased policy. However, while the act did get rid
of mandatory minimums with drug cases, which overtime may reduce incarceration rates, it did increase
punishment in violent drug cases.

III. THE FIRST STEP ACT

The First Step Act was enacted in 2018 and was a progressive step in criminal justice reform.
While there are many important provisions set forth by the First Step Act, there are a few that shift more
radically from past legislation. One of which was the requirement of the Department of Justice and
Bureau of Prisons to establish and implement a risk and needs assessment system for inmates.22 In
response to this, the DOJ created the Prisoner Assessment Tool Targeting Estimated Risks and Needs, or
PATTERN.23 This test takes into account factors such as gender, education level, incident reports, and
programs completed while incarcerated, to predict general and violent recidivism rates. PATTERN has
been successful in predicting recidivism rates at the one, two, and three-year ranges, and has been used to
help determine eligibility for programs and early release opportunities.24
Another main provision under this act was the systems of earned time credits (ETC) and good
time credits (GTC), where inmates can work, take part in vocational and educational programs, and

15
Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322,
https://www.govinfo.gov/content/pkg/COMPS-10824/pdf/COMPS-10824.pdf
16
Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322,
https://www.govinfo.gov/content/pkg/COMPS-10824/pdf/COMPS-10824.pdf
17
Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322,
https://www.govinfo.gov/content/pkg/COMPS-10824/pdf/COMPS-10824.pdf
18
“Studies on Deterrence, Debunked,” Studies on Deterrence, Debunked | Death Penalty Information Center, 2017,
https://deathpenaltyinfo.org/policy-issues/deterrence/discussion-of-recent-deterrence-studies.
19
Fair Sentencing Act of 2010, Pub. L. 111-220, https://www.congress.gov/111/plaws/publ220/PLAW-
111publ220.pdf
20
David A. Sklansky, “Cocaine, Race, and Equal Protection,” Stanford Law Review 47, no. 6 (July 1995): 1283–
1322, https://doi.org/10.2307/1229193.
21
“Crack Cocaine and the Fair Sentencing Act,” Fair Sentencing Act Fact Sheet, November 2023,
https://legislativeanalysis.org/wp-content/uploads/2023/11/Fair-Sentencing-Act-Fact-Sheet-FINAL.pdf.
22
First Step Act, Pub. L. No. 115–391 (2018), https://www.congress.gov/115/plaws/publ391/PLAW-
115publ391.pdf
23
“PATTERN Risk Assessment,” BOP: First Step Act, Resources, accessed 2024,
https://www.bop.gov/inmates/fsa/pattern.jsp.
24
Nancy La Vigne, “2022 Review and Revalidation of the First Step Act Risk Assessment Tool,” National Institute
of Justice 2022 Review and Revalidation of the First Step Act Risk Assessment Tool, March 2023,
https://www.ojp.gov/pdffiles1/nij/305720.pdf.
 59

maintain good conduct to earn credits, which work as days off of sentences.25 Rehabilitative processes,
such as educational and vocational programs, reduce recidivism rates and are incentivized through this
program.26 Additionally, since inmates reduce their sentences by completing these programs and earning
ETCs and GTCs, the incarcerated population may lessen, as inmates complete their sentences more
quickly. Furthermore, prison itself is a risk factor for increasing recidivism—it has been shown to have a
slightly positive association with reoffending—so this program works two-fold to try and reduce
recidivism rates.27,28 Residential reentry centers, where inmates may be placed before they are fully
released, are also emphasized in this provision. Reentry programs help reduce recidivism by providing
structure, employment counseling, job placement, financial management assistance, and other services
that allow inmates to better reintegrate into society upon release.29
Other provisions in the First Step Act work to reform prison and sentencing practices. There are
two main provisions pertaining to drug offenders including the reduction of mandatory minimums for
particular nonviolent drug offenses and allowing sentences under the mandatory minimum (essentially
making the mandatory minimum not mandatory) for some nonviolent drug offenses. Also related to
sentencing, the bill requires low-risk inmates to serve the maximum amount of time permitted under
house arrest, and requires inmates to be placed within 500 miles of their primary residence. Additionally,
the First Step Act requires that the Fair Sentencing Act of 2010 must work retroactively, meaning that
drug possession sentences from before the passing of the Fair Sentencing Act can be reduced in
accordance with the act.
There are also provisions specifically for the wellbeing of female inmates, including limiting the
use of restraints on pregnant and postpartum inmates, and requiring tampons and sanitary napkins to be
made available and free. Additionally, the bill includes provisions regarding correctional officers, such as
incorporating de-escalation procedures into training, and allowing correctional officers to store and carry
firearms outside the perimeter of a prison. Other provisions in this bill include requiring probation and
pretrial services officers to provide supervision to sex offenders who were conditionally released,
requiring the BOP to help inmates obtain identification documents prior to their release, and limiting
juvenile solitary confinement.

IV. SUCCESS AND CRITICISMS OF THE FIRST STEP ACT

Since its enactment in 2018, the First Step Act has shown documented success in reducing the
incarcerated population and recidivism rates. There have been over 40,000 releases as a result of this
legislation: almost 5,000 instances of compassionate release or reduced sentences, over 1,000 elderly
inmates approved for home confinement, and at least 5,000 other inmates released to home confinement.30
Additionally, nearly 8,500 inmates have been placed into residential reentry programs and about 7,000
have been put into Medication Assisted Treatment for substance use.31 Furthermore, through the
retroactive application of the Fair Sentencing Act, about 4,000 inmates have had their sentences
reduced.32 About 20% of federally incarcerated inmates in 2018 have been released as a result of the act,

25
“First Step Act Earned Time Credits,” First Step Act Earned Time Credits | United States Sentencing
Commission, January 25, 2024, https://www.ussc.gov/education/first-step-act-earned-time-credits.
26
Gregory Magee, “Education Reduces Recidivism,” Technium Social Sciences Journal 16 (2021): 175–82,
https://doi.org/10.47577/tssj.v16i1.2668.
27
Ryan Cotter, Length of Incarceration and Recidivism, June 2022,
https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-
publications/2022/20220621_Recidivsm-SentLength.pdf.
28
Damon M. Petrich et al., “Custodial Sanctions and Reoffending: A Meta-Analytic Review,” Crime and Justice 50,
no. 1 (December 1, 2021): 353–424, https://doi.org/10.1086/715100.
29
“About Our Facilities; Completing the Transition,” BOP: Residential Reentry Management Centers, 2024,
https://www.bop.gov/about/facilities/residential_reentry_management_centers.jsp.
30
“First Step Act,” BOP: First Step Act, 2024, https://www.bop.gov/inmates/fsa/.
31
“First Step Act,” BOP: First Step Act, 2024, https://www.bop.gov/inmates/fsa/.
32
“First Step Act,” BOP: First Step Act, 2024, https://www.bop.gov/inmates/fsa/.
 60

which is a clear improvement, especially as past crime bills have aligned with an increase in
incarceration.33,34 The rate of recidivism has drastically lowered in inmates who went through First Step
Act programming, dropping below 10% as of a June 2024 report, indicating that these programs are
successful in reducing crime.35 This is also significant because the offenses that fall under the First Step
Act are primarily non-violent, which generally have high recidivism rates.36 The nine-year rearrest rate
for both property and drug offenses is generally over 80%, but offenders in these categories, who were
released under the First Step Act, had recidivism rates of 10.2% and 6.7% respectively, demonstrating
First Step Act programs are successful in reducing recidivism.37,38 However, since these programs have
only been implemented for six years, it is impossible to know what the rates will be at the eight and ten
year mark. While early reductions in recidivism rates indicate progress, there is the chance that higher
rates persist in the long-term.
Critics of the First Step Act question if its limited jurisdiction allows it to be effective. Some
inmates are automatically ineligible to earn the reduced time credits set up by the First Step Act based on
perception that they may pose an increased risk to society due to the offenses they committed.39 These
offenses include violent offenses, offenses against the state, sex related crimes, human trafficking,
repeated possession of firearms (for felons), and high-level drug offenses. Drug offenses, sex offenses,
and violent crimes (other than murder), have relatively high recidivism rates on average, meaning that by
excluding these offenses from the First Step Act, Congress has undermined their ability to fully address
this problem.40 Offenders who cannot earn credits not only do not have a chance to reduce their sentences,
but more importantly are not incentivized to complete programs that can reduce criminogenic risk factors.
Another aspect that limits the reach of the First Step Act is that it only applies to federal prisons
and not state prisons. A majority of incarcerated individuals are under their state’s prison system as
opposed to the federal prison system; almost 60% of inmates in the U.S. are incarcerated in state prisons,
whereas only about 12% are in federal custody and the rest are in local jails.41 Since such a large
population of incarcerated individuals in state facilities, the act cannot be as effective as possible, since it
can only apply to 12% of those incarcerated. One potential way for this act to reach state systems would
be to limit funding to states unless they comply with provisions set by the bill. The Violent Crime Control
and Law Enforcement Act of 1994 used this tactic to encourage states to change their sentencing practices
by funding the construction of more prisons.42 However, this could lead to potential problems, as this
would be expensive for the federal government, funding may not be consistent across states, and this
tactic may not be well received by states who do not have prison reform as a priority.

33
E. Ann Carson, Prisoners in 2018, April 2020, https://bjs.ojp.gov/content/pub/pdf/p18.pdf.
34
“Growth in Mass Incarceration,” Research - Get the Facts - The Sentencing Project, June 20, 2024,
https://www.sentencingproject.org/research/.
35
First Step Act Annual Report - June 2024, June 2024, https://www.bop.gov/inmates/fsa/docs/first-step-act-annual-
report-june-2024.pdf.
36
J. J. Prescott, Benjamin David Pyle, and Sonja B. Starr, “Understanding Violent-Crime Recidivism ,” Notre Dame
Law Review 95, no. 4 (2020), https://ndlawreview.org/wp-content/uploads/2020/05/9.-Prescott-et-al..pdf.
37
Mariel Alper and Matthew R. Durose, Recidivism of Sex Offenders Released from State Prison: A 9-Year
Follow-Up (2005-14) , May 2019, https://bjs.ojp.gov/content/pub/pdf/rsorsp9yfu0514.pdf.
38
“First Step Act,” BOP: First Step Act, 2024, https://www.bop.gov/inmates/fsa/.
39
Madeleine Dolan, “The First Step Act’s Misstep: Why the First Step Act Violates Prisoners’ Rights to Equal
Protection,” American University Law Review Forum 69, no. 233 (2020): 233–65,
https://amunlawreview.wpengine.com/wp-content/uploads/2020/08/Dolan.to_.Forum_.pdf
40
Mariel Alper and Matthew R. Durose, Recidivism of Sex Offenders Released from State Prison: A 9-Year
Follow-Up (2005-14) , May 2019, https://bjs.ojp.gov/content/pub/pdf/rsorsp9yfu0514.pdf.
41
E. Ann Carson and Rich Kluckow, Correctional Populations in the United States, 2021 – Statistical Tables,
February 2023, https://bjs.ojp.gov/document/cpus21st.pdf.
42
Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322,
https://www.govinfo.gov/content/pkg/COMPS-10824/pdf/COMPS-10824.pdf
 61

An additional criticism of the First Step Act has been of PATTERN, and how it predicts higher
recidivism rates for inmates that are racial minorities than for white inmates. In one study, “Black
defendants were 77% more likely to be labeled as a higher risk of committing a future violent crime”
compared to white defendants.43 A common criticism of algorithm-based models, such as PATTERN, is
the bias they often hold in carceral settings, specifically against minorities, as they are often less accurate
when concerning inmates who are not white. Using the “area under curve” statistical method, which
measures how correctly predictive tool performs, it was found that the AUC value was higher (the tool
worked more correctly) for White inmates than for Black or Hispanic inmates.44 Over 50% of Black men
were identified as having a high risk of recidivism, whereas only 29% of White men were. Since there is
more error with minority inmates, it is possible this is an over evaluation. Based on the outcome of
PATTERN, the BOP advises what should be done based on inmates’ criminogenic needs. However, if
Black and Hispanic inmates’ risks of recidivism are being identified as higher than they are, this may lead
to discrepancies in access to rehabilitative programming, reentry programming, and release eligibility.

V. IMPLICATIONS AND CONCLUSION

The First Step Act, while enacted under a conservative administration, is arguably the most
progressive federal crime bill America has seen. There is much more of a focus on the reduction of crime
through rehabilitative programming, rather than a reduction of crime through increasing arrests and
punishment. While the OJP maintains that “the chance of being caught” is incredibly powerful in
preventing crime, general deterrence—deterrence that seeks to discourage crime by general punishment
of offenders—is proven to be an ineffective means of reducing crime.45,46 Although unsuccessful, this
type of deterrence seems to have been the main motivator behind harsher penalties for drug and violent
offenses in the past. The rehabilitative programming introduced by the First Step Act will likely be
extremely beneficial in reducing rates of recidivism, as it targets the reduction of crime through reducing
criminogenic risk factors, rather than ineffective measures such as deterrence. This is likely to affect the
overall crime rate, as the 10-year recidivism rate in the United States is about 80% on average, meaning a
large portion of offenders reoffend.47 If the amount of reoffending can be lessened, a portion of crime will
also reduce.
The application of the First Step Act, specifically surrounding how particular provisions of the act
apply retroactively, has caused confusion. Two cases have recently been granted writs of certiorari by the
Supreme Court, and will be heard during this upcoming cycle. Hewitt v. United States and Duffey v.
United States ask whether First Step Act provisions reducing sentences apply retroactively when
someone’s original sentence took place before the act but then was resentenced later on. The decision of
these cases will help solidify how the act is able to work, and hopefully expand the number of inmates
that the act can apply to.

43
Amy Cyphert, “Reprogramming Recidivism: The First Step Act and Algorithmic Prediction of Risk,” Seton Hall
Law Review 51 (2020): 331–81, https://doi.org/10.2139/ssrn.3793685.
44
Amy Cyphert, “Reprogramming Recidivism: The First Step Act and Algorithmic Prediction of Risk,” Seton Hall
Law Review 51 (2020): 331–81, https://doi.org/10.2139/ssrn.3793685.
45
Laura Bennett and Felicity Rose, “Deterrence and Incapacitation: A Quick Review of the Research,” Deterrence
and Incapacitation: A Quick Review of the Research: The Center For Just Journalism, 2024,
https://justjournalism.org/page/deterrence-and-incapacitation-a-quick-review-of-the-
research#:~:text=General%20deterrence&text=from%20committing%20crimes.-
,What%20does%20the%20evidence%20say%3F,be%20if%20they%20are%20caught.
46
Five Things About Deterrence, May 2016, https://www.ojp.gov/pdffiles1/nij/247350.pdf.
47
Tenzing Lahdon, “Justice Matters Newsletter - From the Desk of BJA - November 2023,” From the Desk of BJA
- November 2023 | Justice Matters | Bureau of Justice Assistance, November 27, 2023,
https://bja.ojp.gov/news/justice-matters/desk-bja-november-
2023#:~:text=A%20U.S.%20Department%20of%20Justice,formerly%20incarcerated%20people%20were%20rearre
sted.
 62

Overall, the First Step Act has set a successful framework for lowering recidivism rates, reducing
crime, and decreasing the incarcerated population. However, for this act to be successful, it needs to
greatly expand its reach to allow individuals who committed violent crimes to take part in programming,
as well as apply fully retroactively. The federal government should also incentivize state compliance with
the act. Without expanding to include more incarcerated individuals, the First Step Act is undermining its
own efficacy.
 63

SERIOUS MENTAL ILLNESS: A NECESSARY EXCEPTION TO THE DEATH PENALTY

David Gilmore

I. INTRODUCTION
Capital punishment has long been a contentious topic, and its usage is intrinsically linked with the
perception of those who commit the worst crimes. The Eighth Amendment of the United States
Constitution, often used to challenge the death penalty’s constitutionality, forbids the government from
inflicting “cruel and unusual” punishments.1 These challenges have led to exceptions where capital
punishment has been held to be unconstitutional no matter the crime, such as for offenders who are
juveniles or have an intellectual disability. Unrepresented in these protections are individuals with serious
mental illness (SMI), despite meeting the exact same criteria. In order to ensure fair treatment in the
justice system, an exception preventing the execution of offenders with a severe mental illness must be
put in place, the creation of which is an increasingly pressing issue.

II. HISTORY AND PRINCIPLES

To understand the current implementation of the death penalty, one must understand the
principles behind the conflict surrounding it. After being temporarily banned by the 1972 case Furman v.
Georgia (408 U.S. 238) due to the arbitrary and unequal way it was applied, capital punishment was
reinstated four years later in Gregg v. Georgia (428 U.S. 153 (1976)) with more scrutiny on both the
method of punishment and the consistency of its application.2,3 Under the standards set out by Gregg, the
Court did not consider capital punishment as a whole to be cruel and unusual. When considering if a
punishment violates the Eighth Amendment, The Supreme Court has held that its cruelty is not only
judged by the punishment itself, but also by its proportionality.4 Assigning a disproportionate punishment
to the crime committed is unconstitutional, even if the punishment is not cruel or unusual in and of itself.
Due to this, the death penalty is reserved for the most severe crimes, with the Court finding in Kennedy v.
Louisiana (554 U.S. 407 (2008)) that the death penalty is impermissible in cases where “the crime did not
result, and was not intended to result, in death of the victim.”5
As stated in Kennedy, intent is weighed heavily when considering the application of the death
penalty. A common term when discussing capital punishment is “aggravating factors,” or circumstances
that increase the severity of a crime.6 These must be present in any crime to make it conscionable to use
the death penalty. In addition, these factors must be specific and increase a defendant’s “culpability,” or
responsibility, for their actions. For example, in Godfrey v. Georgia (446 U.S. 420 (1976)), the Supreme
Court ruled that a Georgia statute permitting an individual to be sentenced to death if their crime was
“outrageously or wantonly vile, horrible and inhuman” was unconstitutional due to its scope, as “a person
of ordinary sensibility could fairly characterize almost every murder” within those conditions.7 The
supposed aggravating factors did not display especially vile conduct, which made using the death penalty
disproportionate and therefore cruel and unusual.
Opposite to aggravating factors are “mitigating factors”; circumstances that reduce a crime’s
severity.8 One common factor is intent, as a crime with intention must be judged harsher than one
without. However, mitigating factors can also include characteristics of the offender. For example, an
intellectual disability is treated as a mitigating factor, as those with one are often unable to comprehend

1
U.S. Const. amend. VIII.
2
Furman v. Georgia, 408 U.S. 238 (1972), https://supreme.justia.com/cases/federal/us/408/238/.
3
Gregg v. Georgia 428 U.S. 153 (1976), https://supreme.justia.com/cases/federal/us/428/153/.
4
Solem v. Helm, 463 U.S. 277 (1983), https://supreme.justia.com/cases/federal/us/463/277/.
5
Kennedy v. Louisiana, 554 U.S. at 412 (2008), https://supreme.justia.com/cases/federal/us/554/407.
6
LII / Legal Information Institute. “Aggravating Factor,” June 2022.
https://www.law.cornell.edu/wex/aggravating_factor.
7
Godfrey v. Georgia, 446 U.S. at 428-429 (1976), https://supreme.justia.com/cases/federal/us/446/420/.
8
LII / Legal Information Institute. “Mitigating Factor,” July 2023.
https://www.law.cornell.edu/wex/mitigating_factor.
 64

the full gravity of their actions. This culminated in the 2002 case Atkins v. Virginia (536 U.S. 304 (2002),
where the Supreme Court ruled that individuals with an intellectual disability may not be sentenced to
death. It primarily affirmed that intellectual disability was a mitigating factor that reduced individual
culpability. Drawing on its previous ruling in Godfrey, the majority explained that if a simple murder
could lead to the death penalty, “the lesser culpability of the [intellectually disabled] offender surely does
not merit that form of retribution.”9 Secondarily, the Court explained that capital punishment for
offenders with intellectual disability failed as a crime deterrent, as the threat of death would only
reasonably deter a logical actor. The Court reasoned that people with an intellectual disability were less
likely to follow a rational or calculated course of action, thereby minimizing the deterrent value.10
Notably, the burden of proving intellectual disability is placed on the defense, which is the opposite of
most aspects in a criminal trial. Similarly, the Court banned the death penalty for juveniles in Roper v.
Simmons (543 U.S. 551 (2005)), reasoning that a juvenile’s impulsiveness and susceptibility to outside
influences, factors outside of their control, categorically decrease their culpability.11 Under the same logic
as Atkins, capital punishment for juveniles was declared cruel and unusual due to its lack of retributive or
deterrent value.

III. ARGUMENTATION
Offenders who have serious mental illness often exhibit similar characteristics to juveniles or
those with intellectual disability, yet no similar protections against capital punishment exist.12 An
individual experiencing psychosis may have delusions and believe something that is not true, or have
hallucinations and experience that falsehood.13 People with bipolar disorder may act impulsively and not
follow a rational thought pattern, and post-traumatic stress disorder may damage cognitive function
similarly to intellectual disability.14,15 If an offender experienced any of these symptoms, they would
clearly have reduced culpability due to the irrationality of their actions. The question of if the person
would have committed the crime if they did not have a serious mental illness is poignant and difficult to
answer, as intent is hard enough to prove when a defendant does not have a serious mental illness.
To clarify, individuals who have a mental illness are by no means more violent than those who do
not. The vast majority of people with serious mental illness are never violent.16 Serious mental illness
often occurs simultaneously with other socioeconomic factors that predispose even people without mental
illness to violence. When accounting for these factors, individuals with serious mental illness may be less
likely to commit violent acts than large demographics of non-mentally ill individuals. In a recent study,
there was a weaker link between violence and SMI than between violence and “younger age, male gender,

9
Atkins v. Virginia, 536 U.S. 304 at 319 (2002), https://supreme.justia.com/cases/federal/us/536/304/.
10
Atkins, 536 U.S. 304, at 320.
11
Roper v. Simmons, 543 U.S. 551 (2005), https://supreme.justia.com/cases/federal/us/543/551/.
12
Irick v. Mays NO. 3:18-cv-00737 (2020), Amicus Brief of National Alliance On Mental Illness, NAMI
Tennessee, Mental Health America, MHA Tennessee, Tennessee Mental Health Consumers’ Association, and
Tennessee Coalition for Mental Health and Substance Abuse Services in Support of Petitioner.
13
National Institute of Mental Health. “Understanding Psychosis.” Accessed November 7, 2024.
https://www.nimh.nih.gov/health/publications/understanding-psychosis.
14
Cleveland Clinic. “Mania: What Is It, Causes, Triggers, Symptoms & Treatment,” September 14, 2021.
https://my.clevelandclinic.org/health/diseases/21603-mania.
15
Qureshi, Salah U., Mary E. Long, Major R. Bradshaw, Jeffrey M. Pyne, Kathy M. Magruder, Timothy Kimbrell,
Teresa J. Hudson, Ali Jawaid, Paul E. Schulz, and Mark E. Kunik. “Does PTSD Impair Cognition Beyond the Effect
of Trauma?” The Journal of Neuropsychiatry and Clinical Neurosciences 23, no. 1 (January 2011): 16–28.
https://doi.org/10.1176/jnp.23.1.jnp16.
16
DeAngelis, Tori. “Mental Illness and Violence: Debunking Myths, Addressing Realities.” https://www.apa.org,
American Psychological Association, July 11, 2022. https://www.apa.org/monitor/2021/04/ce-mental-illness.
 65

lower educational achievement, parental criminal history, history of childhood abuse, alcohol abuse,
relationship ending, financial strain, anger, drug abuse, perceived threats, [or] recent victimization.”17
Additionally, no discussion of mental illness and capital punishment is complete without
mentioning race. Racial and ethnic minorities are historically overrepresented in the justice system,
experiencing over-policing, disproportionate sentencing, and an unfair perception as a greater danger.18
Approximately three quarters of individuals who have been executed were sentenced to death for killing
White victims, despite Black individuals being victims of around half of all killings. Since 1976, over ten
times more Black defendants with White victims have been executed than vice versa.19 Minorities
additionally experience at a higher rate many socioeconomic conditions that are environmental factors for
serious mental illnesses, such as childhood discrimination, violence, poverty, and even simply living in an
urban environment.20 Compounding this, racial minorities are less likely to seek out treatment for mental
health conditions.21 In all, the treatment of mental illness and race in the justice system are highly
interconnected issues, each compounding the other.
The issue of serious mental illness and capital punishment is not a small one. It is estimated that
at least twenty percent of people on death row have a serious mental illness.22 Two fifths of people
executed between 2000 and 2015 had an SMI such as schizophrenia, bipolar disorder, or PTSD.23 Even
when it was legal, the execution of individuals with intellectual disability was rare.24 That is not the case
with serious mental illness.
Some opposed to a ban on the death penalty for individuals with SMI argue that there are already
protections for individuals with mental illness and that people will claim mental illness to avoid
punishment, undermining the deterrent value of the death penalty. First and foremost, the assertion that a
serious mental illness exception would undermine the deterrent effectiveness of the death penalty is
simply incorrect. The same concern was raised in Atkins v. Virginia, but the court reasoned that executing
intellectually disabled individuals had no effect, positive or negative, on the deterrence of crime.25 Those
rational enough to understand the consequences of their actions would know that they could still be
executed, and those irrational enough to ignore them would never have been deterred in the first place.
The same logic applies to individuals with serious mental illness. Thus, the argument returns to the
question of culpability–of which offenders with an SMI definitively have less of–and therefore the
punitive value of capital punishment is diminished as well.
As for the claim that offenders will plead that they have serious mental illness to escape
punishment, it must be noted that they would still be heavily sentenced. People with an intellectual
disability and juveniles can still be sentenced to life in prison without parole, and an SMI exception
17
Elbogen, Eric B., Paul A. Dennis, and Sally C. Johnson. “Beyond Mental Illness: Targeting Stronger and More
Direct Pathways to Violence.” Clinical Psychological Science 4, no. 5 (2016): 747–59.
https://doi.org/10.1177/2167702615619363.
18
National Conference of State Legislatures. “Racial and Ethnic Disparities in the Criminal Justice System,” May
24, 2022. https://www.ncsl.org/civil-and-criminal-justice/racial-and-ethnic-disparities-in-the-criminal-justice-
system.
19
Death Penalty Information Center. “Race and the Death Penalty by the Numbers,” January 1, 2023.
https://deathpenaltyinfo.org/policy-issues/race/race-and-the-death-penalty-by-the-numbers.
20
Brown, Alan S. “The Environment and Susceptibility to Schizophrenia.” Progress in Neurobiology 93, no. 1
(2010): 23. https://doi.org/10.1016/j.pneurobio.2010.09.003.
21
National Institute of Mental Health. “Mental Illness - National Institute of Mental Health (NIMH),” September
2024. https://www.nimh.nih.gov/health/statistics/mental-illness.
22
Mental Health America. “Death Penalty and People with Mental Illnesses,” June 2016.
https://www.mhanational.org/issues/death-penalty-and-people-mental-illnesses.
23
Roemer, Leah. “Under Recent State Legislation, Courts in Ohio and Kentucky Rule Four Men Ineligible for
Execution Due to Serious Mental Illness.” Death Penalty Information Center, September 25, 2024.
https://deathpenaltyinfo.org/under-recent-state-legislation-courts-in-ohio-and-kentucky-rule-three-men-ineligible-
for-execution-due-to-serious-mental-illness.
24
Atkins, 536 U.S. 304, at 316.
25
Atkins, 536 U.S. 304, at 320.
 66

would function the same way. Additionally, faking a mental illness is difficult, as any trial is before a jury
and judge who consider all available evidence from both sides. As with intellectual disability, the burden
of proof would be on the defense to show mental illness, not simply claim it as fact.
Finally, the current protections for those with serious mental illness are wholly inadequate. The
most well-known is the “insanity plea,” where a defendant asserts a lack of culpability due to mental
illness. The most common test used when assessing these claims is the “M'Naghten rule” which requires
that “at the time of committing the act, the accused was laboring under such a defect of reason, from
disease of the mind, as not to know the nature and quality of the act he was doing or, if he did know it,
that he did not know what he was doing was wrong.”26 In theory, this works fine for mental illnesses like
schizophrenia, as it is clear that someone experiencing a delusion or hallucination that leads them to
commit a heinous crime was working under “a defect of reason.” However, the effectiveness of the
M’Naghten rule falls apart when considering other forms of SMI, such as bipolar disorder, which do not
include such clear cut disconnects from reality. Additionally, the insanity plea is an all-or-nothing
bargain, with the accused either being entirely exonerated or sentenced in full.
Another option is a “diminished capacity” plea, a partial defense where the defendant seeks
conviction of lesser crimes. As a part of this plea, the defendant argues that they were unable to form the
intent to commit the crime, which is required for conviction, due to mental impairment or disease.27
Both of these pleas ignore a core issue—a defendant in a capital case is always accused of a
terrible crime, and jurors often want to ensure proportional punishment. The public and jurors hold a
negative opinion of the insanity defense, which can lead to the perception that a guilty verdict is necessary
regardless.28 There are more progressive alternatives to the M’Naghten test, such as the Durham test or
the Model Penal Code, but they do little to help as they still run into the same issues with the behavior of
juries. The diminished capacity defense is little better, as previous controversies have made juries
skeptical of defendants presenting the argument even under valid circumstances.29
The constitutional requirement that defendants must be competent to stand trial is another
safeguard that could protect defendants with mental illness. However, this does not last indefinitely, and a
defendant will still be tried once restored to competence.30 This can come in the form of medication,
which, under the standards established in Sell v. United States (539 U.S. 166 (2003)), may be forcibly
administered if “important governmental interests are at stake,” the medication is necessary to further
those interests, the medication would not have side effects that would “interfere significantly with the
defendant’s ability to assist counsel,” alternative treatments would not be effective, and the administration
of the medicine would be “medically appropriate.”31 In a capital case with a defendant who has a serious
mental illness, most of these conditions are inherently fulfilled. The state has an important interest in
prosecuting such an individual, and forced medication is often the only way to restore competence.
However, a defendant may be considered able to assist their counsel yet still experience side effects of
heavy psychotropic medication, namely sedation.32 Due to this, the perception of defendants with serious
mental illness is often negative regardless of circumstance. The lethargic behavior of heavily medicated
defendants can be seen as a lack of care towards the severity of their situation, while the demeanor of

26
LII / Legal Information Institute. “Insanity Defense,” June 2023.
https://www.law.cornell.edu/wex/insanity_defense.
27
LII / Legal Information Institute. “Diminished Capacity,” October 2022.
https://www.law.cornell.edu/wex/diminished_capacity.
28
Michael L. Perlin, “Myths, Realities, and the Political World: The Anthropology of Insanity Defense Attitudes,”
Bulletin of the American Academy of Psychiatry & the Law 24, no. 1 (1996).
29
LII / Legal Information Institute. “Twinkie Defense,” September 2021.
https://www.law.cornell.edu/wex/twinkie_defense; LLI / Legal Information Institute, “Diminished Capacity”
30
LII / Legal Information Institute. “Competency for Trial.” Accessed November 8, 2024.
https://www.law.cornell.edu/constitution-conan/amendment-5/competency-for-trial.
31
Sell v. United States, 539 U.S. 166 (2003), https://supreme.justia.com/cases/federal/us/539/166/.
32
John Muench and Ann M. Hamer. “Adverse Effects of Antipsychotic Medications.” American Family Physician
81, no. 5 (2010): 617–22.
 67

unmedicated ones can be perceived as dangerous. As a whole, mental illness is often perceived by juries
as an aggravating factor instead of a mitigating one, leading to defendants being sentenced to death
because of their mental illness, not in spite of it.33
The competency protection and its overall ineffectiveness extends past the trial phase as well. In
Ford v. Wainwright (477 U.S. 499 (1989)), The U.S. Supreme Court ruled that “the Eighth Amendment
prohibits a State from carrying out a sentence of death upon a prisoner who is insane.”34 However, the
question of if an inmate can be forcibly medicated to restore competency is open. In 2002, the Eighth
Circuit Court of Appeals heard Singleton v. Norris (319 F.3d 1018 (8 Cir. Ark. 2003)), and declared that
the state of Arkansas forcibly administering antipsychotic medication to a prisoner pending execution was
constitutional. Charles Singleton, an inmate on death row, suffered no side effects from the medication
and “the State’s interest in carrying out its lawfully imposed sentence” overrode the defendant’s desire to
not take the medication.35 The Supreme Court denied certiorari for this case.
It must also be noted that barring offenders with serious mental illness from being executed
would bring financial benefits. Capital punishment cases are more expensive for the state from pretrial to
execution.36 Investigations generally take longer and more evidence is used, leading to longer trials. The
incarceration of prisoners on death row is more costly. Even the appeals are more expensive for the
state.37 A 2018 study by the American Bar Association found that Tennessee would save between 1.4 and
1.9 million dollars per year by implementing an SMI exception for the death penalty, money that could be
directed towards more effective methods of crime deterrent or mental health treatment.38

IV. IMPLEMENTATION
This article has not yet given a definition of what constitutes “serious mental illness,” as it is one
of the most hotly debated parts of instituting an exception to capital punishment. Medically, the National
Institute of Mental Health defines serious mental illness as a disorder which “results in serious functional
impairment” and “substantially interferes with… major life activities.”39 To inform a legal definition of
SMI, one must also look at the precedent established for defining intellectual disability. Atkins
specifically left the definition up to the states, though throughout the opinion cited “subaverage
intellectual functioning” and “significant limitations in adaptive skills.”40 Florida subsequently set a
“bright-line” requirement of a seventy or lower IQ score to be considered intellectually disabled; a
medical diagnostic criteria. This was challenged in the case Hall v. Florida (572 U.S. 701 (2014)), where
the Court struck down this bright-line requirement. In doing so, the Supreme Court affirmed that “the
legal determination of intellectual disability is distinct from a medical diagnosis, but it is informed by the
medical community’s diagnostic framework.”41 When defining serious mental illness, a similar standard

33
American Civil Liberties Union. “Report: Mental Illness and the Death Penalty,” May 5, 2009.
https://www.aclu.org/publications/report-mental-illness-and-death-penalty.
34
Ford v. Wainwright, 477 U.S. 499 (1989), https://supreme.justia.com/cases/federal/us/477/399/.
35
Singleton v. Norris, 319 F.3d 1018 (8 Cir. Ark. 2003), https://caselaw.findlaw.com/court/us-8th-
circuit/1213175.html.
36
Robert L. Spangenberg and Elizabeth R. Walsh, “Capital Punishment or Life Imprisonment? Some Cost
Considerations.” Loyola University of Los Angeles Law Review 23, no. 1 (1989): 45–58.
https://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=1614&context=llr.
37
Death Penalty Information Center. “Costs.” Accessed November 8, 2024. https://deathpenaltyinfo.org/policy-
issues/costs.
38
American Bar Association. “Potential Cost-Savings of a Severe Mental Illness Exclusion from the Death Penalty:
An Analysis of Tennessee Data,” June 2018.
https://www.americanbar.org/content/dam/aba/administrative/crsj/deathpenalty/2018-smi-cost-analysis-w-tn-
data.pdf.
39
National Institute of Mental Health. “Mental Illness ,” September 2024.
https://www.nimh.nih.gov/health/statistics/mental-illness.
40
Atkins, 536 U.S. 304, at 317-318.
41
Hall v. Florida, 572 U.S. 701 (2014), https://supreme.justia.com/cases/federal/us/572/701/.
 68

must be followed in order to prevent situations like this. Medical diagnoses of specific conditions must
remain distinct from legal determinations, which should rely on an individual’s symptoms and overall
capability.
Some legal definitions have already been recommended. In 2006, the American Bar Association
passed a resolution stating that “Defendants should not be executed or sentenced to death if, at the time of
the offense, they had a severe mental disorder or disability that significantly impaired their capacity (a) to
appreciate the nature, consequences or wrongfulness of their conduct, (b) to exercise rational judgment in
relation to conduct, or (c) to conform their conduct to the requirements of the law.” This proposal was
also endorsed by the American Psychiatric Association and the American Psychological Association, with
a similar position being taken by the National Alliance on Mental Illness (NAMI).42,43 Most crucial is the
phrase “significantly impaired,” a lower bar which protects defendants who would otherwise be ignored
by the M’Naghten test but nevertheless have diminished culpability.
As of now, two states have passed bills that exempt people with serious mental illness from
capital punishment: Ohio and Kentucky. Ohio House Bill 136 of the 133rd general assembly prevents an
individual from being sentenced to death if they had a serious mental illness at the commission of the
crime. Serious mental illnesses are defined as schizophrenia, schizoaffective disorder, bipolar disorder, or
delusional disorder, and a defendant must show that this mental illness “significantly impaired the
person's capacity to exercise rational judgment” relating to their conduct.44 Kentucky House Bill 269 of
the 2022 Regular Session prevents an individual from being sentenced to death if, at the time of the
offense, they “had active symptoms and a documented history, including a diagnosis” of the same four
mental illnesses.45 Both of these bills have glaring issues. For one, they require a formal diagnosis of
specific conditions. The Kentucky bill requires that the diagnosis be present before the time of the
offense, a condition that will prevent many defendants with serious mental illness, especially from poorer
or rural areas that may not have access to mental health care, from being protected. Additionally, the
Kentucky bill does not work retroactively, meaning even those who meet the criteria who have already
been sentenced do not have grounds to submit a new appeal and may still be executed. Nevertheless,
these bills are large steps in the right direction, and were products of broad bipartisan support.

V. CONCLUSION
As of now, serious mental illness exceptions to capital punishment are a stalled affair. However,
their importance cannot be understated. Twenty-one states have an active death penalty, with an average
of 22.3 executions per year over the past ten years.46 Additionally, a further six states and the federal
government have execution moratoriums which can change on a whim. For example, thirteen prisoners
were executed by the federal government for the first time in over fifteen years in the waning months of
Donald Trump’s first term.47 Considering the estimate that twenty percent of people on death row suffer
from serious mental illness, dozens of individuals who would be declared unable to be executed or not
placed on death row in the first place under effective legislation have already been killed. As of July
2024, there are approximately 2,213 inmates sitting on death row, and it is probable that hundreds of them

42
American Bar Association. “ABA Mental Illness Resolution,” August 7, 2006.
https://www.americanbar.org/content/dam/aba/administrative/death_penalty_representation/dp-
policy/2006_am_122a.pdf.
43
National Alliance on Mental Illness. “Death Penalty.” Accessed November 8, 2024.
https://www.nami.org/advocacy/policy-priorities/stopping-harmful-practices/death-penalty/.
44
“Prohibit death penalty if mentally ill at time of offense,” H.B. 136, 133rd General Assembly of Ohio (2021),
https://search-prod.lis.state.oh.us/api/v2/general_assembly_133/legislation/hb136/05_EN/pdf/.
45
“AN ACT relating to mental illness,” 22 R.S. H.B 296, 2022 Kentucky General Assembly,
https://apps.legislature.ky.gov/recorddocuments/bill/22RS/hb269/orig_bill.pdf.
46
Death Penalty Information Center. “Executions by State and Region Since 1976,” 2024.
https://deathpenaltyinfo.org/executions/executions-overview/number-of-executions-by-state-and-region-since-1976.
47
Death Penalty Information Center. “Executions Under the Federal Death Penalty,” 2021.
https://deathpenaltyinfo.org/state-and-federal-info/federal-death-penalty/executions-under-the-federal-death-penalty.
 69

would be impacted by retroactive serious mental illness exceptions.48 Capital punishment is a costly
method of justice, both in a monetary and moral sense, and it is clear that a serious mental illness
exception is both correct and necessary. Stagnation will only lead to more executions of individuals
whose death will serve no value.

48
Dunham, Robert. “Death Row U.S.A. Summer 2024.” Legal Defense Fund, July 1, 2024.
https://www.naacpldf.org/wp-content/uploads/DRUSASummer2024.pdf.
 70

AN ANALYSIS OF THE INSANITY DEFENSE & DOUBLE JEOPARDY

IN MCELRATH V. GEORGIA
Kaila Hall

Last term, the Supreme Court, in McElrath v. Georgia, unanimously affirmed the irrefutability of
a jury’s verdict and the Fifth Amendment’s protection against Double Jeopardy. This intricate case
provides fascinating insight into the intersection of the insanity defense and the Fifth Amendment. Out of
all 50 states, Georgia is the only one that has a “repugnancy”1 law, meaning that a jury’s inconsistent
verdict may essentially be discarded. In McElrath v. Georgia, this law is front and center in determining
one man’s access to constitutional rights following the Georgia Supreme Court decision to disregard the
trial jury’s verdict. In the unanimous opinion, the Supreme Court wholeheartedly defends McElrath’s
Fifth Amendment rights while declaring the indisputability of a jury’s verdict.

I. BACKGROUND
At the age of 2, Damian McElrath was adopted by a single mother in Georgia. Growing up,
McElrath was diagnosed with bipolar disorder and attention deficit hyperactivity disorder, and
experienced difficulty in school, including low grades, a series of disciplinary issues, and suspensions.
Sometimes, he refused to take his prescriptions and would get into tense arguments with his mother. As
he grew older, McElrath’s mental health worsened and he became delusional. He believed that his mother
was poisoning his food and that he was an FBI agent who had killed several individuals. In 2012, he was
sent to a mental health facility, where he was diagnosed with schizophrenia. After two weeks, McElrath
was discharged since the staff believed he no longer posed a threat to himself or others. A week after
being discharged, 18-year-old McElrath stabbed his adoptive mother, killing her. Immediately, he wrote a
confession note, claiming she admitted to having poisoned him. He then called the police, who took him
to a police station where he confessed. The State of Georgia subsequently charged Damian McElrath with
malice murder, felony murder, and aggravated assault. At trial, McElrath did not deny having killed her
and proceeded to utilize the insanity defense.2 While McElrath faced the possibility of life in prison if
convicted, the question remained if he could be sent to a state mental health facility instead.
In McElrath’s case, the trial jury delivered a split verdict of “not guilty by reason of insanity” on
the malice murder charge, and a verdict of “guilty but mentally ill” on the felony murder and aggravated
assault charges. Subsequently, the trial court sentenced McElrath to life in prison on the felony murder
conviction. Under Georgia criminal law, a jury may find a defendant “not guilty by reason of insanity” if,
at the time of the crime, he “did not have mental capacity to distinguish between right and wrong”3 or he
committed the crime “because of a delusional compulsion as to such act which overmastered his will to
resist committing the crime.”4 This verdict would require the defendant to remain in a state mental health
facility until a court approves his release.5 Per Georgia Code §§17–7– 131(c)(2), (g), a jury can also
deliver a verdict of “guilty but mentally ill,” which may allow the Georgia Department of Corrections to
refer the defendant for temporary6 mental health treatment “within the limits of state funds appropriated
therefor.”7 Following a notification from the Georgia Department of Behavioral Health and
Developmental Disabilities that the defendant no longer needs mental health treatment, the Department of
Corrections will transfer the defendant to jail.8

1
McElrath v. Georgia, November 28, 2023, [Oral Argument] (Docket No. 22–721)
2
McElrath v. Georgia, 22–721 (2024).
3
Ga. Code Ann. §§16–3–2, 16–3–3, 17–7–131(c)(1) (2019)
4
Ga. Code Ann. §§16–3–2, 16–3–3, 17–7–131(c)(1) (2019)
5 McElrath v. Georgia, 601 U.S. ___ (2024)
6
McElrath v. Georgia, 22–721 (2024).
7
GA Code § 17-7-131 (2023)
8
GA Code § 17-7-131 (2023)
 71

Under Georgia Law 308 Ga. 104, 112, 839 S. E. 2d 573, 579 (2020), the court can set a jury's
verdict aside in a criminal case if it is “repugnant,” meaning that it holds “affirmative findings by the jury
that are not legally and logically possible of existing simultaneously.”9 This allows a court to throw out a
jury’s (split) verdict that it deems inconsistent or illogical. According to the State of Georgia, “a criminal
defendant cannot... be both sane and insane at the same time.”10 In the event a case is deemed
“repugnant,” a defendant may be subjected to a second trial.
Following McElrath’s trial, the Georgia Supreme Court challenged the jury’s verdict of “guilty
but mentally ill” for felony murder, deeming it “repugnant.” Essentially, the court took issue with the jury
finding that the defendant was both “not guilty by reason of insanity,” but also “guilty but mentally ill” at
the same time.11 As a result, the Georgia Supreme Court vacated, or voided, the verdicts and sent the case
back to the courts for a retrial.
Afterward, McElrath appealed the Georgia Supreme Court’s decision on the grounds that it
violated the Double Jeopardy Clause in the Fifth Amendment of the U.S. Constitution. This clause states,
“No person shall … be subject for the same offence to be twice put in jeopardy of life or limb…,”12
meaning it prohibits an individual from being retried for the same offense. In McElrath’s appeal,
McElrath’s attorney argued this constituted Double Jeopardy since the jury had already returned a verdict
of “not guilty by reason of insanity” on the malice murder charge. This meant that McElrath had already
been acquitted and that an attempt to retry him would be placing him in jeopardy a second time. If retried,
McElrath would be subjected to another life in prison sentence.
Following the Georgia Supreme Court’s rejection of his Double Jeopardy argument, McElrath
petitioned the U.S. Supreme Court for a writ of certiorari, which it granted. On November 28, 2023, the
Court heard oral arguments in the matter of McElrath v. Georgia.13 In this case, the main legal question
was whether Georgia’s repugnancy law violated the Fifth Amendment’s Double Jeopardy Clause. This
led the Court to consider whether or not the State of Georgia’s repugnancy ruling regarding the jury’s
split verdict was unconstitutional.

II. ORAL ARGUMENTS

i. Richard A. Simpson’s Oral Arguments
Upon arguing their cases, McElrath’s Counsel, Richard A. Simpson, and Georgia Solicitor
General, Stephen J. Petrany faced specific questions regarding the definition of an acquittal and when an
acquittal becomes a matter of state law or federal law. On the matter of acquittals, Simpson asserted14 that
in Smalis v. Pennsylvania (1986),15 the U.S. Supreme Court characterized the granting of a demurrer, or a
request that asserts the truth of a particular claim but requests further evidence for it,16 as an acquittal.
Additionally, in Evans v. Michigan (2013),17 the Court held that “Evans’ trial ended in an acquittal when
the trial court ruled the State had failed to produce sufficient evidence of his guilt.”18 Accordingly, the
Double Jeopardy Clause of the Fifth Amendment prevents the State of Georgia from appealing the trial
jury’s verdict in order to retry McElrath on the same offense. Lastly, Simpson cited the definition of
“acquittal” provided in Smith v. United States (2023),19 which states that an acquittal is “a determination,

9
308 Ga. 104, 112, 839 S. E. 2d 573, 579
10
McElrath v. Georgia, No. 22-721, Petition for Writ of Certiorari (U.S. Supreme Court, Oct. 13, 2023)
11
"McElrath v. Georgia." Oyez. https://www.oyez.org/cases/2023/22-721.
12
Congress.gov. n.d. “U.S. Constitution - Fifth Amendment | Resources | Constitution Annotated | Congress.gov |
Library of Congress.” Constitution.congress.gov. https://constitution.congress.gov/constitution/amendment-5/.
13
McElrath v. Georgia, 22–721 (2024).
14
McElrath v. Georgia, November 28, 2023, [Oral Argument] (Docket No. 22–721)
15
Smalis v. Pennsylvania, 85-227 (1986)
16
Cornell Law School. 2023. “Demurrer.” LII / Legal Information Institute. March 2023.
https://www.law.cornell.edu/wex/demurrer.
17
Evans v. Michigan, 568 U.S. 313 (2013)
18
McElrath v. Georgia, November 28, 2023, [Oral Argument] (Docket No. 22–721)
19
Smith v. United States, 21–1576 (2023)
 72

a resolution of criminal culpability.”20 Here, Simpson argues that McElrath was granted an acquittal based
on SCOTUS precedent, so the State’s attempts to retry him would violate Fifth Amendment.
Because Georgia’s “repugnancy” law allows the State Court to compare the content of two
different verdicts and refuse to honor a jury's final decision, Simpson asserts that this law violates the
Double Jeopardy Clause. Simpson argued that once the jury renders a verdict, the State Court cannot in
any way try to determine why the jury ruled a specific way and question its legitimacy because an
“acquittal is final and conclusive.”21 Simpson proceeded to cite Ball v. United States (1896),22 in which
the U.S. Supreme Court held that the “return of the verdict terminated jeopardy, notwithstanding that the
indictment was invalid ultimately.” This signifies that once a jury delivers a verdict, a defendant’s period
of “jeopardy” or risk of criminal liability23 has ended. Next, Simpson argues that since the jury has
already returned its verdicts, the State Court cannot compare both verdicts on two different offenses in
order to vacate one of the verdicts and have a retrial.24 Furthermore, during trial, the State of Georgia and
McElrath had previously confirmed they had no initial objections to the split verdict, so the court entered
judgment.25 Ultimately, McElrath v. Georgia revolved around the question of whether a State Court can
“deprive the defendant of his right, her right, to have a decision by the particular jury that was
empaneled.”26 [was this the case question or a part of what he was arguing?]
Additionally, the American Civil Liberties Union (ACLU),27 the ACLU of Georgia, and the
National Association of Criminal Defense Lawyers filed an amicus brief28 in support of Damian
McElrath. In the amicus brief, they argue that judges may not review a jury’s verdict and reverse its
acquittals, acting as a check on the State Court’s power and a safeguard for the defendant’s rights.
Specifically, they argue the following:
The jury checks judges and prosecutors through its acquittal power, and out of respect for the
jury’s sovereignty and the individual’s right to a jury trial, juries have “unreviewable power” to acquit,
“even for impermissible rea- sons.” Smith v. United States, 143 S. Ct. 1594, 1608 (2023).29
But that power would mean nothing if it could be circumvented by judges dissatisfied with the
verdict. The Framers therefore sought to fortify the jury through the Double Jeopardy Clause. By making
acquittals final, the Clause allows the jury to bind the hands of judges and prosecutors, and to ensure that
defendants cannot be retried because those officials disagree with the jury’s determinations. By virtue of
the Clause, a jury can mark the end of the matter.30
Essentially, juries hold the “‘unreviewable power’ to acquit, ‘even for impermissible reasons.’”31
By permitting the State Court to review “repugnant” verdicts, the ACLU believes that such a decision
“would contravene the structural role assigned to the jury in our legal system, and invite judges to reverse

20
McElrath v. Georgia, November 28, 2023, [Oral Argument] (Docket No. 22–721)
21
McElrath v. Georgia, November 28, 2023, [Oral Argument] (Docket No. 22–721)
22
United States v. Ball, 163 U.S. 662 (1896).
23
Cornell Law School. 2021. “Jeopardy.” LII / Legal Information Institute. August 2021.
https://www.law.cornell.edu/wex/jeopardy.
24
McElrath v. Georgia, November 28, 2023, [Oral Argument] (Docket No. 22–721)
25
McElrath v. Georgia, November 28, 2023, [Oral Argument] (Docket No. 22–721)
26
McElrath v. Georgia, November 28, 2023, [Oral Argument] (Docket No. 22–721)
27
“McElrath v. Georgia.” 2023. American Civil Liberties Union. September 13, 2023.
https://www.aclu.org/cases/mcelrath-v-georgia.
28
Brief for the ACLU, ACLU of Georgia, and the National Association of Criminal Defense Lawyers as Amicus
Curiae, p. 1, McElrath v. Georgia, 22–721 (2024).
29
Brief for the ACLU, ACLU of Georgia, and the National Association of Criminal Defense Lawyers as Amicus
Curiae, p. 2, McElrath v. Georgia, 22–721 (2024).
30
Brief for the ACLU, ACLU of Georgia, and the National Association of Criminal Defense Lawyers as Amicus
Curiae, p. 3, McElrath v. Georgia, 22–721 (2024).
31
Brief for the ACLU, ACLU of Georgia, and the National Association of Criminal Defense Lawyers as Amicus
Curiae, p. 3, McElrath v. Georgia, 22–721 (2024).
 73

acquittals with which they disagree.”32 In other words, they are arguing that Georgia’s Supreme Court
should not be allowed to challenge a jury’s “illogical” verdict because this would overstep the court’s
power and infringe upon the inviolability of the trial jury’s verdict.

ii. Georgia Solicitor General Stephen J. Petrany’s Oral Arguments

According to General Petrany, Georgia State law denies that there was a verdict in Damian
McElrath’s case, asserting that “under Georgia's narrow, sensible repugnancy rule, a jury cannot issue
special affirmative findings that facially contradict each other.”33 General Petrany contends that the jury’s
split decision that McElrath is simultaneously sane and insane constitutes “incoherent, contradictory
statements.”34 This then prevents the jury’s decision from being considered a verdict. Since a verdict does
not exist, he argues that there is no termination of jeopardy, so the Double Jeopardy Clause is irrelevant.
Accordingly, the State Court vacated this decision, holding that a verdict, an acquittal, and convictions
did not exist. As such, the State of Georgia believes McElrath can be retried.
Following Petrany’s opening statement, the Supreme Court Justices begin their questioning.
Justice Clarence Thomas started by asking Petrany if there would have been a verdict if there was only
one charge against McElrath.35 Petrany answered affirmatively, but denied the existence of a verdict in
McElrath’s case because there were three separate charges. Given this discrepancy, Justice Thomas took
issue with the need to examine the specific “substance of the verdict”36 if there are multiple charges. In
response, General Petrany distinguishes between a “general verdict” and the“special finding.” First, he
defines the “general verdict” as when McElrath was declared “not guilty by reason of insanity”37 on the
malice murder charge, so this did not require delving into any special findings. Second, he defines the
“special finding” as McElrath being declared both sane and insane simultaneously on different charges.38
Petrany then argues that “if [McElrath] had not been insane, he would have been guilty.”39 Because of this
“inconsistent” verdict, Petrany denies the existence of an acquittal and advocates for a retrial.
Subsequently, Justice Neil Gorsuch challenged Petrany’s argument about this lack of an acquittal.
Instead, Justice Gorsuch explained that precedent shows that the United States has consistently respected
acquittals without having to examine the substance of the verdict. In fact, he believes it acts as a check on
judges and prosecutors.40 General Petrany then clarifies his argument to say that citing precedent in this
instance is not relevant because no acquittal exists due to the jury’s inability to resolve the factual
question.
Next, Justice Elena Kagan entered into the discussion and questioned the State of Georgia’s
motivations to “intrud[e] into the jury's deliberations.”41 In response, Petrany explicitly denied that the
State was trying to delve into the “internal thoughts” of the jurors and assess their overall decision-
making process. Instead, he proposes that the State of Georgia examines the jury’s findings on one
particular fact that is being decided in the case, which is McElrath’s insanity at the time of the crime.”42
Justice Ketanji Brown Jackson then asserts that there has been a “time immemorial principle with respect
to jury deliberations”43 that whether a verdict is inconsistent or not must not matter in determining its
legitimacy. Ultimately, Justice Sonia Sotomayor reiterates the holding in Smith v. United States (2023)

32
“McElrath v. Georgia.” 2023. American Civil Liberties Union. September 13, 2023.
https://www.aclu.org/cases/mcelrath-v-georgia.
33
McElrath v. Georgia, November 28, 2023, [Oral Argument] (Docket No. 22–721)
34
McElrath v. Georgia, November 28, 2023, [Oral Argument] (Docket No. 22–721)
35
McElrath v. Georgia, November 28, 2023, [Oral Argument] (Docket No. 22–721)
36
McElrath v. Georgia, November 28, 2023, [Oral Argument] (Docket No. 22–721)
37
McElrath v. Georgia, November 28, 2023, [Oral Argument] (Docket No. 22–721)
38
McElrath v. Georgia, November 28, 2023, [Oral Argument] (Docket No. 22–721)
39
McElrath v. Georgia, November 28, 2023, [Oral Argument] (Docket No. 22–721)
40
McElrath v. Georgia, November 28, 2023, [Oral Argument] (Docket No. 22–721)
41
McElrath v. Georgia, November 28, 2023, [Oral Argument] (Docket No. 22–721)
42
McElrath v. Georgia, November 28, 2023, [Oral Argument] (Docket No. 22–721)
43
McElrath v. Georgia, November 28, 2023, [Oral Argument] (Docket No. 22–721)
 74

that “an acquittal takes place when there is a merits-related ‘resolution,’ correct or not, ‘of some or all of
the factual elements of the crime charged.’”44 Overall, Justices across different legal interpretations were
seemingly unconvinced by the State of Georgia’s arguments.

III. OPINION OF THE COURT

On February 21, 2024, the Supreme Court released its ruling on McElrath v. Georgia. In a
unanimous opinion45 written by Justice Jackson, the Court ruled that the Double Jeopardy Clause
prevented McElrath from being retried again and subsequently reversed the Georgia Supreme Court’s
decision. Specifically, the Court held that the “jury’s verdict that McElrath was not guilty of malice
murder by reason of insanity constituted an acquittal for double jeopardy purposes notwithstanding any
inconsistency with the jury’s other verdicts.”46 Per Smith, “the jury holds an unreviewable power to return
a verdict of not guilty even for impermissible reasons.” In other words, this signifies that the validity of a
jury’s verdict is unquestionable, regardless of the jury’s interpretation of the law. As such, the jury has the
ultimate discretion. Furthermore, the Court establishes that an acquittal occurred in McElrath since the
ruling “relat[es] to the ultimate question of guilt or innocence.”47 The Court reaffirmed the precedent that
the Double Jeopardy Clause prohibits any form of challenging an acquittal. Since the Court found that an
acquittal has taken place, the Georgia Supreme Court is prohibited from examining the jury’s specific
reasons in its decision-making process. Therefore, the Double Jeopardy Clause of the Fifth Amendment
does not permit Damin McElrath’s retrial. The Court reversed and remanded the judgment of the State
Supreme Court.

IV. CONCURRING OPINION

Justice Samuel Alito provides the sole concurring opinion of this case. He distinguishes between
a State Supreme Court’s challenge of a verdict and a trial judge’s refusal “to accept inconsistent verdicts
and thus sends the jury back to deliberate further.”48 Since the Constitution prohibits appeals of acquittals,
the Georgia Supreme Court’s decision to retry McElrath due to the split verdict is reversed. However,
Alito believes legal proceedings for inconsistent verdicts differ at the initial trial level. Under his
interpretation, it is acceptable for lower level judges to require juries to return to deliberations49 in the
event they provide an inconsistent verdict per United States v. Powell50 and Dunn v. United States.51 On
the contrary, it would be inappropriate for a higher court, such as a State Supreme Court, to challenge a
jury’s inconsistent verdict for the sake of doing so. Justice Alito concludes that the Court’s decision in
McElrath does not weigh in on “whether a not-guilty verdict that is inconsistent with a verdict on another
count and is not accepted by the trial judge constitutes an ‘acquittal’ for double jeopardy purposes.”52
Though it does not change the outcome of the case, Alito’s concurring opinion makes an important
distinction for the future applicability of this holding.

V. KEY TAKEAWAYS
The Supreme Court’s unanimous decision in McElrath v. Georgia reaffirms the constitutional
protection against Double Jeopardy and clarifies the legal definition of acquittal. The vagueness and
uniqueness of Georgia’s “repugnancy” law provided the State prosecutors with the leeway to exploit not

44
McElrath v. Georgia, 22–721 (2024).
45
McElrath v. Georgia, 22–721 (2024).
46
McElrath v. Georgia, 22–721 (2024).
47
United States v. Scott, 437 U. S. 82, 98, n. 11 (1978)
48
McElrath v. Georgia, 22–721 (2024).
49
McElrath v. Georgia, 22–721 (2024).
50
United States v. Powell, 469 U. S. 57, 68–69 (1984).
51
Dunn v. United States, 284 U. S. 390, 393–394 (1932).
52
McElrath v. Georgia, 22–721 (2024).
 75

only the ambiguous definition of acquittal, but also the jury’s verdict. Accordingly, the law wrongfully
permitted their attempts to retry McElrath. They utilized the arbitrary standards set in the “repugnancy”
law to circumvent over 200 years of American legal precedent and protection for an individual’s rights
not to be retried for a crime following an acquittal. Georgia’s piecemeal effort to enforce certain laws
while disregarding the overarching protections and rights granted in the Constitution displays their
attempts to entirely disregard the jury’s verdict. The U.S. Supreme Court’s decision to strike down these
efforts constitutes a rebuke of the prosecution’s attempts to revive a case they lost by disregarding an
individual’s rights.
While it may be understandable for attorneys to take issue with the inconsistencies in the jury’s
verdict, we must fundamentally remember that members of the jury are not experts in the law, nor have
we ever expected them to be. Why then should the McElrath jury suddenly be held to this higher
standard? The ultimate purpose of having a jury is for a defendant to have a fair and impartial trial made
up of everyday Americans. Historically, American jurisprudence has preserved its tradition of honoring a
jury’s verdict regardless of the outcome. Despite the possibility of logical inconsistencies, Courts must
ultimately respect the inviolability of a verdict overall. Consequently, this decision sets legal precedent
for future cases involving split verdicts. Although this particular case involving both the insanity defense
and a Double Jeopardy issue is rare, the Court’s decision nonetheless recommits itself to the protections
enshrined in the Fifth Amendment and confirms the irrefutability of a jury’s verdict for future cases.
 76

WHEN THE MUSIC STOPS:

CAN ANTITRUST LAW DISMANTLE LIVE NATION’S DOMINANCE?
Riley Kramer

I. INTRODUCTION
Live Nation Entertainment is the world’s largest entertainment company; this conglomerate
wields significant influence across various segments in the music industry, such as concert promotion,
ticketing, artist management, and venue operations. Notably, Live Nation controls “more than 80 percent
of major concert venues [and] over 400 big-name artists are locked into Live Nation’s management
services”1. This extensive network allows Live Nation to leverage its business lines to maintain
dominance in the industry. This domineering power has led many to label it as the “music behemoth.”
This massive concentration of power raises critical concerns about whether LiveNation is engaging in
unjust monopolistic practices. In late 2022, the US Department of Justice, along with 30 state and district
attorneys generals, filed a civil suit against Live Nation Entertainment, alleging violations of Section 2 of
the Sherman Act2. This lawsuit highlights the detrimental impact LiveNation’s practices may have on the
music landscape, greatly affecting competitors, artists, and consumers alike.

II. EVOLUTION OF LIVE NATION ENTERTAINMENT

The first iteration of Live Nation Entertainment took shape in 1996, when Robert F.X. Sillerman
began acquiring several major concert promotion companies across the United States, ultimately resulting
in the creation of SFX Entertainment. Before Sillerman’s consolidation efforts, other sectors of the
entertainment industry—including movies, television, and books—had already been brought under the
control of a few dominant companies3. What set SFX Entertainment apart was its focus on generating
revenue through advertising and sponsorships, rather than just ticket sales, making a shift in the
operations of the overall music industry. Sillerman eventually sold SFX to Clear Channel
Communications, which in 2005 spun off its entertainment division into what was Live Nation4. Over the
next few years, Live Nation solidified its dominance by acquiring key players in the music industry,
including a main competitor: the House of Blues. This acquisition marked a pivotal transformation,
signaling the end of true competition in the live-music industry as only two players remained: Live
Nation and AEG Live5. Furthermore, Live Nation’s artist management division, Artist Nation, controls
some of the biggest musicians in the industry, such as Madonna, U2, Shakira, and Jay-Z, meaning that
Live Nation has exclusive control over their albums, ticket sales, and concerts6.

III. EVOLUTION OF TICKETMASTER

1
Goldstein, Luke. 2024. “How Live Nation’s Monopoly Works.” The American Prospect. May 24, 2024.
https://prospect.org/power/2024-05-24-how-live-nations-monopoly-works/.
2
U.S. Department of Justice. 2024. “Office of Public Affairs | Justice Department Sues Live Nation-Ticketmaster for
Monopolizing Markets across the Live Concert Industry | United States Department of Justice.” Www.justice.gov.
May 22, 2024. https://www.justice.gov/opa/pr/justice-
department-sues-live-nation-ticketmaster-monopolizing-markets-across-live-concert.
3
F.X, Robert. 2015. “Robert F.X. Sillerman and the Roots of Concert Consolidation | MichaelCorcoran.net.”
MichaelCorcoran.net. June 10, 2015. https://www.michaelcorcoran.net/robert-f-x
-sillerman-and-the-roots-of-concert-consolidation/.
4
Wall Street Journal. 2005. “Clear Channel Gives Details on Spinoff of Live Nation Unit,” December 15, 2005, sec.
News. https://www.wsj.com/articles/SB113460359053522836.
5
Duhigg, Charles. 2006. “House of Blues Sold to Live Nation.” Los Angeles Times. July 6, 2006.
https://www.latimes.com/archives/la-xpm-2006-jul-06-fi-live6-story.html.
6
News.bbc.co.uk. 2008. “Singer Shakira Joins Live Nation,” July 3, 2008.
http://news.bbc.co.uk/2/hi/entertainment/7487572.stm.
 77

Long before Sillerman’s consolidation in the promotion industry, another critical player in the
music industry emerged: Ticketmaster. In 1976, Albert Leffer, Peter Gadwa, and Gordon Gunn created
the now world-renowned business7. Ticketmaster originally licensed computer programs as well as sold
hardware for ticketing systems. Over time, Ticketmaster began collaborating with various venues and
switched to computerized ticketing. Much like LiveNation, Ticketmaster expanded its influence by
acquiring its primary rival, Ticketron in 1991, cementing its position as the market leader. Over the next
twenty years, Ticketmaster made several strategic acquisitions, including Paciolan, a developer of
ticketing system applications, and Front Line, an artist management firm8. These acquisitions
strengthened Ticketmaster’s control over the ticketing and artist management sectors of the entertainment
industry. By 2008, Ticketmaster held over 80% of the marketing share for the ticketing service industry
through the use of long-term exclusivity agreements, thereby creating significant barriers to entry for
potential competitors.9

IV. LIVE NATION AND TICKETMASTER MERGE

The landscape of the music industry was forever changed in 2009 when Live Nation merged with
Ticketmaster, resulting in the establishment of Live Nation Entertainment. Before this merger, Live
Nation was Ticketmaster’s biggest customer, selling tickets for events at various Live Nation venues.
However, despite this established relationship, Live Nation refused to renew its contract with
Ticketmaster and instead began developing its own ticketing platform. At the time, Live Nation was
grappling with over $800 million in debt, largely due to venue maintenance fees, and its stock was trading
for less than $3 per share. Despite these challenges, there was a potential lifeline: a merger.
Ticketmaster also faced a critical juncture: it could either compete against its biggest former
customer or pursue a merger. Ultimately, Ticketmaster opted for the latter, and the unprecedented merger,
valued at a staggering $2.5 billion in stock, positioned Live Nation Entertainment to capture “70 percent
of the concert ticket market”10. Over the next decade, Live Nation Entertainment continued to expand
through numerous acquisitions and partnerships, including acquiring the remaining 25 percent stake in
FrontLine Artist Management firm and Live Nation Productions, a film and television division.
Moreover, Live Nation Entertainment secured stakes in several prominent festivals, such as the Bonnaroo
Arts Festival. Live Nation Entertainment’s revenue streams span four main business lines:
1. Concert Promotion — ticket sales for concerts
2. Venue Operation — concessions, parking, premium seating, rental income, and ticket
rebates or service charges earned on tickets
3. Artist Management —commissions on earnings of artists and other clients
4. Ticketing (Ticketmaster) — convenience and order processing fees, or service charges11
Despite widespread opposition to this merger’s potential to create a dominant, uncontested force
in the industry, Christine Varney, then head of the DOJ Antitrust Division, approved the deal with
minimal restrictions. In defending the DOJ’s decision, Varney emphasized that the merger review process
focused primarily on whether the transaction would substantially lessen competition rather than
addressing broader industry concerns. While she acknowledged widespread dissatisfaction with

7
“More than 30 Years of Connecting the World to Live Entertainment. The Legacy of Ticketmaster.” n.d.
https://media.ticketmaster.com/en-us/img/static/aboutus/tmTimline08.pdf.
8
Buskirk, Eliot Van. 2008. “Ticketmaster Acquires Majority of Front Line Management.” Wired. October 23, 2008.
https://www.wired.com/2008/10/ticketmaster-ac/.
9
Dyck, Katherine, and Lee Hepner. 2024. “The Case against Live Nation-Ticketmaster a BRIEF HISTORY of the
LIVE NATION- TICKETMASTER MERGER A. HOW LIVE NATION IS
STRUCTURED.”https://www.economicliberties.us/wp-content/uploads/2024/01/20240104-AELP-Livenation-
Brief-FINAL.pdf.
10
Segal, David. 2010. “Ticketmaster Joins Live Nation, and Industry Quakes.” The New York Times, April 24,
2010. https://www.nytimes.com/2010/04/25/business/25ticket.html.
11
Dyck, Katherine, and Lee Hepner. 2024
 78

heightened ticket fees and consolidation within the industry, Varney argued that these issues fell outside
the scope of antitrust enforcement. Essentially, reviewing a merger does not grant the DOJ the authority
to fundamentally reshape an industry or a firm’s business model to make it more consumer-friendly.
Moreover, she clarified that the DOJ cannot reverse broad industry trends and that their examination is
focused solely on whether a specific transaction will harm competition
In essence, Varney minimized the DOJ’s rule, suggesting that it is up to other federal agencies to
address consumer fairness while allowing the market to dictate outcomes for consumers. Despite
recognizing that Live Nation Entertainment could, and does, restrict access to talent for competing venue
owners, the DOJ allowed the transaction to proceed. Based on her decree, Varney believed that Live
Nation Entertainment could not wield monopoly power in artist management and promotion due to the
fragmentation in the industry, noting that artists are typically signed for just one tour at a time. This
practice should create ample opportunities for new agents and promoters to bid for artists, meaning that
Live Nation Entertainment would not truly effectively lock-up the industry.12
Regarding the DOJ’s settlement, the terms of approval included a consent degree mandating fair
practices, as well as requiring the sale of ticketing subsidiary Paciolan to Comcast and the licensing of
Ticketmaster’s ticketing software to AEG. However, it is crucial to note that the divestiture of Paciolan
only granted Comcast a 2% share of the ticketing marketing, mainly limited to college athletics. In
addition, the licensing agreement with AEG only lasted five years and allowed Live Nation Entertainment
to collect significant royalties. Despite Varney’s assertion that this settlement represented “vigorous
antitrust enforcement,” critics argue that neither the divestment nor the licensing arrangement resulted in
meaningful market competition. Most concerningly, Live Nation Entertainment swiftly violated the
consent decree, further entrenching its monopolistic position in the music industry13.

V. SECTION 2 OF THE SHERMAN ACT

Section 2 of the Sherman Acts renders it illegal to:
“Monopolize, or combine or conspire with any other persons, to monopolize any part of the trade
or commerce among the several States, or with foreign nations”14
In essence, Section 2 prohibits the acquisition or maintenance of monopoly power through unjust
means. It is imperative to distinguish that conduct harming competitors alone is not necessarily an antitrust
violation—what is prohibited is conduct that harms competition itself. In the landmark case U.S. vs
Microsoft, the court clarified:
“A firm violates [Section 2] when it acquires or maintains, or attempts to acquire or maintain, a
monopoly by engaging in exclusionary conduct as distinguished from growth or development as
a consequence of a superior product, business acumen, or historic accident”15
The Supreme Court recognizes that competition is inherently aggressive, and successful businesses
often achieve their dominance at the expense of less successful rivals. However, the court aims to prevent
illegal conduct that leads to monopolistic power, not to stifle legitimate business growth. The challenge lies
in differentiating between competitive practices and exclusionary conduct, which intentionally blocks
others from entering or succeeding in the market.

12
“Redirect Notice.” 2024. Google.com. 2024.
https://www.google.com/url?q=https://www.justice.gov/atr/speech/ticketmasterlive-nation-merger-review-and-
consent-decree-perspective&sa=D&source=docs&ust=1729889375829349&usg=AOvVaw3Un1hMQ--sXlbfiXiB-
gFb.
13
Brown, Krista. 2023. “The Depth of Live Nation’s Dominance: A Data Analysis of the Corporate Capture behind
Top Concert Venues Worldwide.” https://www.economicliberties.us/wp-content/uploads/
2023/06/052023_AELP_Ticketmaster_PolicyBrief.pdf.
14
“Competition and Monopoly: Single-Firm Conduct under Section 2 of the Sherman Act : Chapter 1.” 2015.
Www.justice.gov. June 25, 2015. https://www.justice.gov/archives/atr/competition-and-monopoly-single-firm-
conduct-under-section-2-sherman-act-chapter-1#N_1_.
15
“U.S. V. Microsoft Corp., 253 F.3d 34 | Casetext Search + Citator.” 2001. Casetext.com. June 28, 2001.
https://casetext.com/case/us-v-microsoft-corp-6#p58.
 79

In the DOJ’s suit against Live Nation Entertainment, the government asserts that the company has
engaged in exclusionary and anti-competitive behavior. Specifically, the DOJ claims that Live Nation
Entertainment, has “unlawfully maintained monopolies in several concert promotions and primary ticketing
markets and engaged in other exclusionary conduct affecting live concert venues”16. The crux of the issue
is not whether a monopoly in the music industry is inherently good or bad, but whether Live Nation
Entertainment obtained and maintained its dominance through illegal and exclusionary practices that
undermine competition in violation of Section 2 of the Sherman Act.

VI. EFFECT OF MONOPOLISTIC PRACTICES ON TICKET PRICES

Concert ticket prices have surged dramatically in recent years, with the average concert ticket
price rising 26 percent over the past five years. However, this figure only reflects first-time sales, yet the
majority of tickets are sold through resales, where price gouging often occurs. Disturbingly, Ticketmaster
has played a significant role in facilitating these inflated prices by allowing scalpers to purchase millions
of tickets annually, despite policies that supposedly prohibit such practices. Scalpers often operate
hundreds of Ticketmaster accounts which enables them to buy and resell a plethora of tickets at steep
markups.
Ticketmaster profits more from fees earned on secondary market sales than from direct sales,
creating a clear conflict of interest. This incentivizes the company to limit access to tickets in the primary
market, either by restricting sales or allowing scalpers to exploit the system.17 This dynamic creates a
principal-agent problem, wherein Ticketmaster profits from practices that harm consumers, driving up
prices artificially.
Additionally, Live Nation Entertainment has openly admitted to engage in practices that further
inflate ticket prices. Chiefly, the company has been known to help artists sell tickets at inflated prices
through resale platforms. In one instance, Metallica transferred 88,000 tickets to a resale account
managed by a Live Nation Entertainment broker to maximize profits. This practice boosts revenue for
both the artists and Live Nation Entertainment by capitalizing on higher resale prices, again at the
expense of fans.18
Dynamic pricing has further exacerbated this crisis. By tying ticket prices to real-time supply and
demand, Ticketmaster is able to charge the maximum amount consumers are willing to pay. This issue is
largely unique to the United States, where antitrust enforcement has been relatively weak. As a result,
many fans find it more affordable to travel internationally for concerts—covering the cost of tickets,
airfire, and hotels—rather than attend local events, yet again demonstrating the detrimental impact of Live
Nation Entertainment’s monopolistic practices on its consumers19

VII. RAMIFICATIONS FOR ARTISTS AND VENUES

According to the DOJ, Live Nation Entertainment’s exclusionary practices fuel a self-reinforcing
“flywheel” that solidifies its dominance in the music industry. This flywheel refers to the company’s
business model, wherein it “captures fees and revenue from concert fans, uses that revenue to lock up

16
“Competition and Monopoly: Single-Firm Conduct under Section 2 of the Sherman Act : Chapter 1.” 2015.
Www.justice.gov. June 25, 2015. https://www.justice.gov/archives/atr/competition
-and-monopoly-single-firm-conduct-under-section-2-sherman-act-chapter-1#N_1_.
17
Krista Brown, and Zach Freed. 2022. “How Antitrust Enforcers Helped Create a Live Events Monster.”
https://www.economicliberties.us/wp-content/uploads/2022/10/LiveNation_QuickTake_R3-3.pdf.
18
Tiffany, Kaitlyn. 2019. “The Latest Weird Music Industry Scheme: Artists Scalping Their Own Tickets.” Vox.
July 22, 2019. https://www.vox.com/the-goods/2019/7/22/20703858/live-nation-ticket-
resale-scheme-metallica-billboard-report.
19
Millman, Ethan. 2024. “Inside Live Nation-DOJ’s Blockbuster Monopoly Lawsuit.” Rolling Stone. October 2024.
https://www.rollingstone.com/music/music-features/live-nation-ticketmaster
-monopoly-lawsuit-doj-justice-department-1235114969/.
 80

artists to exclusive promotion deals, and uses its powerful cache of live content to sign venues into long
term exclusive ticketing deals” thereby perpetuating the cycle.20
One of the key ways Live Nation Entertainment maintains control is through its ownership of 265
concert venues, including many of the most popular amphitheaters. Artists who wish to use these venues
for their tours are often required to use Live Nation Entertainment’s promotion services, such as Artist
Nation. If artists attempt to resist, as bands like Pearl Jam have tried in the past, they are relegated to
playing smaller, less appealing venues, diminishing their tour’s profitability
For live concert venues, the situation is equally worrisome. Choosing a promoter or ticketing
service other than Live Nation or Ticketmaster can, and does, result in severe repercussions. Venues
know that opting out of Ticketmaster also means they risk losing access to the most lucrative Live nation
concerts and the audiences that come with them. This pressure is particularly evident for venues managed
by AEG, Live Nation’s only remaining competitor; AEG venues that dare to refuse Ticketmaster’s
services face losing top-performing events, possibly hindering that venue’s ability to survive.
A concrete example of this retaliatory behavior occurred in 2021 when TEG artist management
held a concert at the Los Angeles Coliseum and chose StubHub as its ticketing partner, even though the
venue had an exclusive deal with Ticketmaster. In response, Live Nation Entertainment threatened to
deny entry to any fan who purchased tickets through StubHub. The company further escalated this
retaliation by leveraging their relationship with Oak View Group, whose private equity owners also held a
large stake in TEG, through pressuring the company to stop competing against them.21 This poignant
example underscores the extreme lengths to which Live Nation Entertainment will pursue to protect its
monopoly and deter competition.
These practices of exclusionary behavior not only limit competition but also harm the diversity
and vibrancy of the live concert industry. As a vertical merger, Live Nation Entertainment has prevented
rival ticketing companies from accessing “critical scale benefits, including individual concertgoer data
[needed] to secure third-party venue contracts.”22 As a horizontal merger, Live Nation Entertainment
eliminated the potential for competition between Ticketmaster and the newly formed ticket-selling service
at the then Live Nation. Consequently, artists, venues, and fans are faced with fewer options, higher costs,
and a lack of genuine alternatives, as Live Nation Entertainment continues to violate Section 2 of the
Sherman Act.

VIII. 2019 COURT FILINGS AND INITIAL DOJ RESPONSE

In response to the increasing scrutiny concerning Live Nation Entertainment’s business practices
and alleged violations of the 2010 merger consent decree, the DOJ filed a civil suit against the
corporation. These court filings were significant not only due to the sheer amount of violations but also
for the fact that the names of the alleged victims were anonymized, shielding them from further
retaliation. This underscores the enormous fear that Live Nation Entertainment instilled in dozens of key
industry stakeholders, who were concerned about being blacklisted if they spoke out against the company.
However, instead of imposing meaningful remedies, the DOJ’s response was remarkably tepid;
Live Nation Entertainment was fined a mere $3 million dollar fine and forced to extend the existing
consent decree by another five and a half years. Considering that the corporation’s revenue in 2022
totaled $17 billion, the threat of these fines are disproportionately small. Nevertheless, the DOJ yet again
failed to address the deeper structural issues allowing Live Nation Entertainment to maintain their
monopoly. As a result of this lack of aggressive enforcement, the company was able to exploit the same

20
U.S. Department of Justice. 2024. “Office of Public Affairs | Justice Department Sues Live Nation-Ticketmaster
for Monopolizing Markets across the Live Concert Industry | United States Department of Justice.”
Www.justice.gov. May 22, 2024. https://www.justice.gov/opa/pr/justice-
department-sues-live-nation-ticketmaster-monopolizing-markets-across-live-concert.
21
Goldstein, Luke. 2024.
22
Dyck, Katherine, and Lee Hepner. 2024
 81

loopholes that were present in the 2010 consent decree, thereby doing nothing to benefit venues, artists,
and fans.23

IX. ANALYSIS OF THE CURRENT LANDSCAPE AND PROPOSED SOLUTIONS

In my opinion, the DOJ’s approval of the Live Nation and Ticketmaster merger in 2009
represented a significant and irreparable oversight of their duties to protect consumers and ensure fair
competition. While Christine Varney argued that the agency’s focus should be on whether the merger
would substantially lessen competition in the specific transaction rather than broader industry concerns,
this narrow interpretation fails to recognize the interconnectedness of market dynamics; mergers of this
magnitude reshape entire markets. In essence, the DOJ should have considered not just the immediate
antitrust implications of the merger but also the long-term impact on consumer welfare, such as the
extraordinarily high ticket prices in recent years.
Nevertheless, the DOJ approved the merger, so it is crucial to now examine its current role in
upholding the integrity of that decision and how I believe it can rectify their exorbitant misstep. Foremost,
the DOJ’s lackluster response to Live Nation’s ongoing violations of the consent decree underscore a
failure to effectively address structural industries within the music industry. A mere $1 million dollar fine
for violations does almost nothing to deter a corporation with over $22 billion in annual revenue.24 This
sheer lack of aggressive enforcement enables Live Nation Entertainment to continue to engage in anti-
competitive practices at the expense of consumers, artists, competitors, and independent venues.
To genuinely restore competition and protect consumers, the live entertainment industry must
undergo substantial structural reform. In particular, Live Nation Entertainment’s four main segments—
Concert Promotion, Venue Operations, Artist Management, and Ticketing—must be broken up into
separate and independent entities. These segments are currently vertically integrated and interdependent,
allowing Live Nation to dominate the market and stifle competition. 25 Typical antitrust remedies involve
the sale of businesses and/or assets. In this case, Live Nation Entertainment should be required to divest
Ticketmaster, effectively undoing the 2009 merger. 26 However, this divestiture alone is not sufficient to
restore competition. Instead, Live Nation Entertainment must also spin off its Venue Operations, Concert
Promotions, and Artist Management lines into three independent businesses. Each divestiture must also
be accompanied by the transfer of critical intangible assets, allowing rival ticket sellers, such as AEG, to
compete on a level playing field.
In addition to structural reforms, the fines for violations of antitrust provisions must be
significantly increased to deter future misconduct. Again, the current $1 million penalty for civil
competent violations is grossly insufficient for a company of Live Nation Entertainment’s size.
Meaningful deterrence can only be achieved with fines that impose a substantial financial burden on the
company and thereby force it to reconsider its unjust behaviors.
By implementing these reforms, the DOJ can finally ensure fair competition within the live
entertainment industry, protecting artists, venues, and consumers from further harm. It is imperative that
the DOJ fulfills its mandate as both a regulator of competition, but also as a protector of consumer
welfare in an industry that is becoming increasingly inequitable.

23
“Attorney General Neronha, Department of Justice Sue Live Nation | Rhode Island Attorney General’s Office.”
2024. Ri.gov. 2024. https://riag.ri.gov/press-releases/attorney-general-Neronha-
department-justice-sue-live-nation.
24
“Live Nation Entertainment - Revenue 2019.” n.d. Statista. https://www.statista.com/statistics
/193700/revenue-of-live-nation-entertainment-since-2006/.
25
Dyck, Katherine, and Lee Hepner. 2024
26
“California v. American Stores Co., 495 U.S. 271 (1990).” 2024. Justia Law. 2024.
https://supreme.justia.com/cases/federal/us/495/271/.
 82

FASHION AND IP LAW: STAR ATHLETIC, LLC V. VARSITY BRANDS, INC. (2017)
Gillian Lee

I. BACKGROUND AND INTRODUCTION

Fashion permeates through everyone’s lives beyond simply the clothes people wear. Fashion is a
mode of self-expression and cultural movements, and is engrained in daily media. Even a picture of an
individual can create an entire fashion discourse. Fashion can be used as a tool for social activism, such as
printing words on clothing to spark critical discourse, or using styles to challenge gender roles. Fashion is
also a significant part of the economy. In 2024, the apparel market generated $354.7 billion in the United
States, and is projected to grow annually by 1.86%.1 Fashion undoubtedly has different meanings and
values to each individual–to people working in the fashion industry, fashion is intrinsic to their lives.
Designers create new designs, spurring trends and new forms of expression.
One of the greatest problems facing designers today is the issue of intellectual property
infringement, particularly as it relates to the copying of designs. The copying of designs is especially
relevant today as it relates to fast fashion companies who turn out countless clothes and designs
constantly to keep up with trends. These companies make clothes at low price points, often letting
consumers buy ripoffs of popular designs for cheap. This has increased the environmental damage the
fashion industry has caused, spurring millions of tons of textile waste, carbon dioxide emissions, chemical
pollution, and more.2 It is cheaper, easier, and more widespread to be copying designs now. This relates to
fast fashion and other areas; scholars Rasutiala and Springman note that “digital photography, digital
design platforms, the Internet, global outsourcing of manufacture, more flexible manufacturing
technologies, and lower textile tariffs have significantly accelerated the pace of copying.”3 These
mediums facilitate a wider space for fast fashion to occur.
It is also important to note that there is a difference between referencing or gleaning inspiration
from a design, and close-copying a design–a distinction scholars Hemphill and Suk focused on, and
determined that the threat to intellectual property comes from the practice of close-copying (Hemphill and
Suk).4 Furthermore, copying can increase the rate of innovation in fashion but, in doing so, reduce the
diversity in fashion as designs get copied over and over, typically by designers or brands who have
already made a name or profit for themselves.
The copying of small, independent designers can be particularly worrisome since they do not
have the brand recognition or financial backing that larger designers have. In fact, in 2021, the American
Intellectual Property Law Association reported that when the amount at stake is less than $1 million in
copyright infringement suits in general, the median copyright litigation cost is $350,000.5 Through these
high legal costs, there are financial disincentivizes for small, independent designers to pursue legal action
and decreases the likelihood their claims will gain traction. However, it is overall unclear whether smaller
companies, fast fashion companies, or luxury brands are most likely to be sued because small designers
have the least resources, fast fashion retailers are usually the ones doing the copying, and luxury brands
are more likely to be concerned with trademark infringement than copyright infringement because
trademarks are more likely to project luxury brands’ image.6 Contrasting with other industry arenas,

1
“Apparel - United States: Statista Market Forecast.” Statista, www.statista.com/outlook/cmo/apparel/united-states.
Accessed 17 Oct. 2024.
2
Niinimäki, K., Peters, G., Dahlbo, H. et al., “The environmental price of fast fashion,” Nat Rev Earth Environ 1,
189–200 (2020), https://doi.org/10.1038/s43017-020-0039-9.
3
Kal Raustiala and Christopher Jon Springmanfaster, “Fashion: The Piracy Paradox and Its Perils,” Cardozo Arts &
Entertainment, Vol. 39.2, 1714-15.
4
Scott Hemphill and Jeannie Suk, “The Law, Culture, and Economics of Fashion,” 61 STAN. L. REV. 1147, 1148,
2009, 1160.
5
Lisa Wang, “The Copying of Independent Fashion Designers: Perils and Potential Remedies in a Post–Star
Athletica World,” Stanford Law Review, April 2023, 1012.
6
Lisa Wang, 1017.
 83

fashion typically has few copyright protections. It thus stifles creative innovation in the industry and
results in a mass copying of similar designs and concepts, such as within fast fashion. Despite a limited
number of cases, there are some legal disputes that give insight into the copyright issues of the fashion
industry.

II. PRECEDENT
Article I Section 8, Clause 8 of the U.S. Constitution, the Intellectual Property Clause, empowers
federal copyright and patent systems: “The Congress shall have Power…To promote the Progress of
Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to
their respective Writings and Discoveries.”7 This laid the foundation for future copyright law, and as it
relates to this article, “useful Arts” made it possible for fashion to be included for possible copyright
purview.
Mazer v. Stein (1954), a case involving the design of lamps, established the “useful article
doctrine” and the principle of separability where “useful” items are not themselves copyrightable, but the
distinct artistic features in or on such useful items could be copyrightable.8
This was later codified in Section 101 of Copyright Act of 1976, 17 U.S.C. § 101, which stated
that “the design of a useful article . . . shall be considered a pictorial, graphic, or sculptural work [eligible
for protection] only if, and only to the extent that, such design incorporates pictorial, graphic, or
sculptural features that can be identified separately from, and are capable of existing independently of, the
utilitarian aspects of the article.”9 A useful article is defined as “an article having an intrinsic utilitarian
function that is not merely to portray the appearance of the article or to convey information.”10 Useful
articles must have a utilitarian function, thus holding practical use.
17 U.S.C. § 102 covers the general copyright subject matter, providing that “Copyright protection
subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of
expression, now known or later developed, from which they can be perceived, reproduced, or otherwise
communicated, either directly or with the aid of a machine or device.”11 Thus, works of authorship need
to be in a “tangible medium of expression,” requiring that works be present in some physical form that
verifies its existence (e.g., written on paper, saved digitally, etc.) and able to be generally understood
through visual or audio means. The section specifies categories for “original works of authorship,”
including "pictorial, graphic, or sculptural work.”
While the separability requirement in 17 U.S.C. § 101 became ingrained in law, there emerged a
lack of clear standards in establishing this separability and thus difficulty for businesses to meet this
standard. For instance, in Whimsicality, Inc. v. Rubie’s Costume Co. (1989), the court noted that “clothes
are particularly unlikely to meet [the test of separability]” because “the very decorative elements that
stand out [are] intrinsic to the decorative function of the clothing.”12 This lack of clarity in the standards
for copyright protection set up the context for the Supreme Court to take on Star Athletica, L.L.C. v.
Varsity Brands, Inc (2017).

III. CASE AND DECISION

In 2011, Varsity Brands brought suit against Star Athletica for copyright infringement over five
of its cheerleading uniforms. Respondents Varsity Brands, Inc., Varsity Spirit Corporation, and Varsity
Spirit Fashions & Supplies, Inc., are leading designers, makers, and sellers of athletic apparel, especially
cheerleading uniforms. At the time of the case, Varsity Brands had obtained or acquired over 200 U.S.

7
U.S. Const. art. 1, § 8, cl. 8.
8
Mazer v. Stein, 347 U.S. 201 (1954), https://supreme.justia.com/cases/federal/us/347/201/.
9
Section 101 of Copyright Act of 1976, 17 U.S.C. § 101.
10
Section 101 of Copyright Act of 1976, 17 U.S.C. § 101.
11
Section 102 of Copyright Act of 1976, 17 U.S.C. § 102.
12
Whimsicality, Inc. v. Rubie’s Costume Co., 721 F. Supp. 1566 (1989), https://law.justia.com/cases/federal/district-
courts/FSupp/721/1566/1419737/.
 84

copyright registrations over their two-dimensional designs, including primarily “combinations,

positionings, and arrangements of elements” that include “chevrons… lines, curves, stripes, angles,
diagonals, inverted [chevrons], coloring, and shapes.”13 The District Court granted summary judgment for
Star, holding that the designs were not protectable works because they served a useful, or "utilitarian,"
function as cheerleading uniforms and could then not pass the principle of separability. Varsity then
appealed to the Sixth Circuit Court of Appeals, which reversed and remanded the district court’s decision.
The appellate court reasoned that the uniform designs were “separable identifiable” since the designs “and
a blank cheering uniform can appear ‘side-by-side–one as a graphic design, and one as a cheerleading
uniform.” The court also held that the designs were "capable of existing independently” as the designs
could appear on other surfaces besides cheerleading uniforms such as different clothing items or as
framed art.14 Following the Sixth Circuit decision, Star appealed to the Supreme Court.
Star Athletica, L.L.C. v. Varsity Brands, Inc (2017) went before the Supreme Court in 2016 to
determine what the appropriate test is for deciding what “useful items” are eligible for copyright under the
Copyright Act. Copyright laws had historically not protected “useful items,” but rather only design
elements outside the scope of useability could receive copyright protection.
The Star court ruled in favor of Varsity Brands in a 6-2 decision. The court held that “a feature
incorporated into the design of a useful article is eligible for copyright protection only if the feature (1)
can be perceived as a two- or three-dimensional work of art separate from the useful article, and (2)
would qualify as a protectable pictorial, graphic, or sculptural work—either on its own or fixed in some
other tangible medium of expression—if it were imagined separately from the useful article into which it
is incorporated.”15 This established a new two-factor test for the 17 U.S.C. § 101 separability requirement.
The second requirement was more difficult to satisfy, as Justice Thomas noted in the opinion, .”.. the
feature must be able to exist as its own pictorial, graphic, or sculptural work as defined in § 101 once it is
imagined apart from the useful article.”16 Thus, the work must be able to be its own work of art if
imaginatively removed from the surface of the medium–in this case, cheerleading uniforms. It is thus
important to recognize that only the designs of the uniforms were potentially copyrightable, not the
functional aspects of the cheerleading uniforms like the “shape, cut, and physical dimensions,” as also
noted in the opinion.17
Justice Thomas wrote the opinion of the court, and Justice Breyer wrote the dissent. In the
dissent, Breyer took issue with the claim that the cheerleading designs were separable from the “useful
item” of the physical cheerleading uniforms as when they were theoretically taken off of the uniform
material, they retained the shape of a typical cheerleading uniform. However, the court determined that
this did not prevent the uniform's compliance with the second factor in the two-prong test.

IV. STAR IMPLICATIONS

In the post-Star world, there has been disagreement over whether the decision was beneficial or
hurtful to the fashion world, and whether it would even change much in general. There is an argument
that many designs have three-dimensional features that would fall outside the purview of Star copyright
protection. To an extent, Star has strengthened the ability for designers to make legal claims for copyright
infringement. However, it is inconclusive whether the number of copyright legal claims have increased
since Star. The Copyright Office’s annual reports do not break down their files into further subcategories
after the category of pictorial, graphic, or cultural (PGS) works that would specify whether a claim relates
to fashion (Stanford). Thus, it is difficult to assess the aftermath of Star. There was an approximate 9.4%
increase in the number of registered works between 2016 and 2018, but the total number of registered

13
Star Athletica, LLC v. Varsity Brands, Inc., 580 U.S. __ (2017),
https://supreme.justia.com/cases/federal/us/580/15-866/#tab-opinion-3706586, 2.
14
Star Athletica, LLC v. Varsity Brands, Inc., 2-3.
15
Star Athletica, LLC v. Varsity Brands, Inc., 1-2.
16
Star Athletica, LLC v. Varsity Brands, Inc., 7.
17
Star Athletica, LLC v. Varsity Brands, Inc., 12.
 85

PGS works dropped in 2019 and 2020. However, the total number of copyright registrations also
decreased during this time. It would be useful if the PGS category had further breakdowns.18
Without the Copyright Office’s data, it is useful to look at the specific cases that have arisen since
Star. Multiple significant fashion copyright cases have been initiated. The subsequent cases Triangl
Group Ltd. v. Jiangmen City Xinhui District Lingzhi Garment Co. (2017) and Silvertop Associates, Inc. v.
Kangaroo Manufacturing, Inc. (2019) provide explicit examples of the post-Star legal arena.19 Triangl
Group Ltd. concerned the design of swimsuits, and the court asserted that the black trimmed lines
forming a “T” shape on swimsuits could be perceived separate from the useful item of a swimsuit and
could exist on another tangible medium.20 Silvertop Associations, Inc. held that a “banana costume's
combination of colors, lines, shape, and length (i.e., its artistic features) are both separable and capable of
independent existence, and thus are copyrightable.”21 Fashion law has transitioned since Star, and there is
a possible signal towards a rise in brands pursuing copyright litigation, plausibly because they now have a
more rigid standard to understand whether their designs can be separate from their items. This potential
increase has led the copyright community to express concern that Star has opened the possibility of
overprotection of designs.22
One considerable alternative to legal suits is social media shaming, where people can pursue this
extralegal enforcement method to gain traction and supporters when they are victim to copying. As Lisa
Wang noted in her 2023 article, uploading a post to social media is quick, easy, and free. In this sense,
social media shaming is “powerfully democratizing,” since it allows “entities with very little financial
power [to] shape public opinion.” 23 Social media is also more likely to have a quicker resolution than a
lawsuit. On the other hand, the difficulty with social media shaming is that it is not guaranteed to work
and people have no obligation to respond to social media claims, as opposed to a legal claim. There are
also many different factors into whether a social media post will gain traction, including the amount of
fame one has or the individual’s race. People are also less likely to receive monetary compensation with
social media shaming and can be emotionally taxing for the designer as they become consumed in
defending themselves.
Similarly, the issue of copying in fashion brings up equity issues. Women, people of color, and
lower earning designers are more likely to be subject to copying piracy.24 Thus, it is even more important
to attempt to solve the issues of copyright in fashion since copying can exacerbate existing societal power
hierarchies and inequalities. It remains unclear whether the increase in copyright cases since Star will
benefit small or minority-owned brands by advancing their chances at successful litigation suits or harm
them by allowing large brands to leverage their economic power even further.
The Star decision may be one step closer to remedy the issues that arise for copyright in fashion
law, but there will never be a perfect solution. Crafting a test that will both deter unethical copying and
minimize equity issues is likely unachievable. Over time, with more data, we can better assess Star’s
effectiveness in the fashion industry and identify what new rules might be needed. It will also be
interesting to see what extralegal methods prove to be successful.

18
Lisa Wang, 1007.
19
Lisa Wang, 1007.
20
Angelo Marchesini, “Thin Separability: An Answer to Star Athletica,” Seattle University Law Review, Vol.
43:1087,
https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?params=/context/sulr/article/2668/&path_info=9_Marc
hesini__1087_1112.pdf, 1096.
21
Silvertop Associates Inc. v. Kangaroo Manufacturing Inc., No. 18-2266 (3d Cir. 2019),
https://law.justia.com/cases/federal/appellate-courts/ca3/18-2266/18-2266-2019-08-01.html, 12.
22
Angelo Marchesini, 1102.
23
Lisa Wang, 1019.
24
Lisa Wang, 983.
 86

NATIONAL ASSOCIATION OF PRIVATE FUND MANAGERS v. SEC: STATUTORY

LIMITATIONS TO SEC RULEMAKING IN DODD-FRANK
Will Long

I. INTRODUCTION AND BACKGROUND

On June 5, 2024, a unanimous panel of the Fifth Circuit Court of Appeals (the Fifth Circuit)
vacated the U.S. Securities and Exchange Commission’s (SEC) Private Fund Advisers; Documentation of
Investment Advisor Compliance Reviews (the Final Rule).1 The Final Rule threatened to expand
reporting, disclosure, and prohibited certain types of preferential treatment of investors in private funds.2
The Fifth Circuit’s decision to vacate the Final Rule, which would have cost $5.4 billion and required
millions of hours of labor,3 provides significant relief to private fund advisers.
In August 2023, the SEC adopted the Final Rule with the stated purpose of protecting investors
by (i) increasing visibility into certain practices involving compensation schemes, sales practices, and
conflicts of interest through disclosure; (ii) restricting adviser practices with the potential to lead to
investor harm and are contrary to the public interest; (iii) restricting the ability of advisers to offer certain
investors preferential treatment; (iv) requiring certain requirements with respect to adviser-led
secondaries; and (v) requiring annual audits for private funds.4
In adopting the Final Rule, the SEC relied on two authorities: its general anti-fraud rulemaking
authority under Section 206(4) of the Investment Advisers Act of 1940 (the Advisers Act)5 and its
authority to regulate private funds advisers under Section 913(h) of the Dodd-Frank Act.6 In September
2023, NAPFM petitioners7 pursued vacatur of the Final Rule under the Administrative Procedure Act
(APA) and the Federal Rule of Appellate Procedure 15(a).8 Petitioners asserted that the Final Rule
exceeded its statutory authority and violated administrative procedure.
While the Fifth Circuit’s decision invalidates the SEC’s attempt to impose additional regulations
on private funds and their advisors, it does not prevent the SEC from pursuing alternative methods of
prioritizing the issues in the Final Rule. After examining and commenting on arguments from petitioners
and respondents, this article will discuss new statutory constraints in the Advisers Act for future SEC
rulemaking. It will also identify grounds on which future litigants could challenge SEC authority and
other regulatory instruments the Commission might use to impose new compliance standards on private
fund advisers.

II. RESPONDENT ARGUMENTS

In an opening brief filed on December 15th, 2023, the SEC stated that it adopted the Final Rule to
address problematic practices by private fund advisers arising from conflicts of interest, insufficient
transparency between private fund advisers and investors, and a lack of effective governance
mechanisms.9 The SEC argues these practices place private fund investors and stakeholders at risk. The
Final Rule addresses these concerns by (i) requiring private-fund advisers to provide investors with more

1
See National Association of Private Fund Managers et. al. v. Securities and Exchange Commission, (5 th Cir. 2024)
(No. 23-60471).
2
See Private Fund Advisers; Documentation of Investment Adviser Compliance Reviews, 88 FR 63296 (Aug.
2023).
3
See NAPFM, at 21.
4
Id. at 2.
5
See 15 U.S.C. § 80b-6.
6
See Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, 124 Stat. 1376 (2010)
7
National Association of Private Fund Managers, Alternative Investment Management Association, Ltd., American
Investment Council, Loan Syndications and Trading Association, Managed Funds Association, and the National
Venture Capital Association.
8
See NAPFM at 14–15.
9
See Brief of Respondent, NAPFM vs. SEC, (5th Cir. 2024) (No. 23-60471).
 87

information about performance and fees, (ii) mitigating conflicts of interest, and (iii) obtaining investor
consent for, or limiting certain activities that can harm investors.10 The SEC raised multiple arguments in
defense of its Final Rule. These arguments claim that the SEC has proper statutory authority to issue the
Final Rule, that the SEC satisfied the APA’s procedural requirements, and that the SEC reasonably
considered the rules’ likely economic effects.11 This article will focus on the SEC’s claims to statutory
authority under Section 913(h) of the Dodd-Frank Act (Section 211(h) of the Advisers Act) and Section
206(4) of the Advisers Act.
Dodd-Frank Section 913(h) authorizes the SEC to facilitate the provision of “disclosures to
investors regarding the terms of their relationships” with advisers and “promulgate rules prohibiting or
restricting certain sales practices, conflicts of interest, and compensation schemes” for investment
advisers that the SEC deems contrary to “the protection of investors.”12 The SEC claims it derives
statutory authority to regulate private fund advisers because the statutory text uses the term “investors”
without modification or limitation, therefore referring to all investors, including private-fund investors.
This reading is plausible, according to the SEC, because Congress does not define the term and its
plain meaning, refers to someone who commits money “to earn a financial return.”13 This argument is
consistent with the ordinary use canon of statutory interpretation, which states that “words are to be
understood in their ordinary, everyday meanings—unless the context indicates that they bear a technical
sense.”14 The SEC also cites statutory language in 15 U.S.C. 80b-2(a)(30) that defines “foreign private
advisers” in terms of the number of “investors in the United States in private funds” (emphasis added) and
later in the statute at 80b-2(b)(c) that authorizes the SEC to issue rules for the “protection of investors.”15
The SEC cites these statutes to argue that Congress has previously used the term “investors” when
enacting legislation that authorizes the SEC to engage in rulemaking that specifically concerns private-
fund advisers.
The Commission provides more support for this claim by arguing that Congress intentionally
switched from using the term “retail customers” in Sections 913(b)-(f) to “investors” in 913(h).16 The
SEC claims this implies that Congress intended to specify a broad subset of investors in 913(h), rather
than just retail customers. To support this interpretation, the SEC cites the majority opinion in Sebelius v.
Cloer (2013) that states when “Congress includes particular language in one section of a statute but omits
it in another section of the same [a]ct, it is generally presumed that Congress acts intentionally.”17
Congress’s omission of the term “retail” as a modifier is purportedly evidence that it intended to authorize
the SEC to regulate private fund advisers.
To extend the argument further, the SEC argues that the heading of Section 913(h) (“Other
Matters”) confirms that Congress intended Dodd-Frank to cover more than retail customers. The
Commission cites majority opinions in Fin. Planning Ass’n v. SEC (2007) and Travers v. Fed. Express
Corp (2021) to claim that the use of the word “other” refers to content distinct and different from that
already mentioned or implied.18 This evidence is additional support for a broad reading of the term
“investors” in 913(h).
Moving to the next claim of statutory authority, the SEC argues Section 206(4) of the Advisers
Act grants the Commission authority to regulate private fund advisers.19 Section 206(4) is a general

10
Id. (21).
11
Id. (v).
12
See § 913(h)(1–2), 124 Stat. at 1829 (codified as amended at 15 U.S.C. § 80b-11(h)).
13
See Merriam Webster’s Collegiate Dictionary (10th ed. 2002); See also Black’s Law Dictionary (11th ed. 2019)
(“A buyer of a security or other property who seeks to profit from it without exhausting the principal.”).
14
See Scalia, A. and Garner, B. Reading Law § 6, at 69 (2012).
15
See 15 U.S.C. 80b-2(a)(30); See also 15 U.S.C. 80b-2(b)(c).
16
Id. at 9 (19).
17
See Sebelius v. Cloer, 569 U.S. 369 (2013).
18
See Travers v. Fed. Express Corp., 8 F.4th 198 (3rd Cir. 2021); Fin. Planning Ass’n v. SEC, 482 F.3d 481 (D.C.
Cir. 2007).
19
Id. at 9 (28).
 88

antifraud rulemaking provision that authorizes the SEC to “prescribe means reasonably designed to
prevent[] such acts, practices, and courses of business as are fraudulent, deceptive, or manipulative.”20
The SEC claims that Section 206(4) grants it “prophylactic rulemaking authority,” or in other words,
authority to adopt rules to prevent certain private actions.21 It supports this interpretation by citing the
Supreme Court’s majority opinion in United States v. O'Hagan (1997) that states the SEC may regulate
acts that are “not themselves fraudulent” if the restriction is “reasonably designed to prevent” fraud or
deception.22 To complete the argument, the SEC argues that each new rule is reasonably designed to
prevent fraud or deception. As evidence, the SEC cites its various descriptions in the Federal Register of
the problems that justified each rule.23 Each description clarifies how the respective rule benefits investors
by increasing transparency into private fund advisers’ sales practices and fees. For example, as to the
adviser-led secondaries and audit rules, the SEC explains that investors are less likely to be deceived
when they are aware of conflicts of interest between independent opinion advisers and private fund
advisers. The SEC also argues that a similar rationale justifies the restricted activities and preferential
treatment rule, which both restrict adviser action that results in investor harm.

III. PETITIONER ARGUMENTS

In an opening brief filed on November 1, 2023, petitioners emphasize that the Final Rule would
fundamentally alter the way private fund advisers and private funds operate.24 Under the existing market-
oriented, contract-based approach (i.e., granting private funds and their advisors extensive autonomy),
private funds have generated an average annual return of 14.1% before fees over the past three years, well
ahead the 10.1% return posted by the S&P 500 during the same period.25 Though gross private fund
returns trailed public markets in 2023 by 5%,26 future rate cuts and narrowing valuation gaps indicate a
potential resurgence in private markets.27 The SEC’s new disclosure and reporting requirements, however,
could damper this growth by increasing AUM fees (Assets Under Management) from the existing 2-and-
20 fee structure, which harms investors by decreasing their return net of fees.
Petitioners raise the following arguments for vacatur of the Final Rule. The arguments claim that
the SEC has no statutory authority to adopt the Final Rule, the SEC deprived petitioners of a meaningful
opportunity to comment on the proposed Final Rule, and the Final Rule is arbitrary and capricious under
the APA. Again, this article focuses on the SEC’s statutory authority.28
Turning first to Dodd-Frank Section 913, petitioners contend the statute applies to “retail
customers,” not private funds.29 Petitioners cite the frequent usage of the term “retail customers” in
Sections 913(b)-(f) (30 times) to frame Dodd-Frank as legislation intended to regulate retail investors,
rather than private fund investors. As seen above, the SEC uses this evidence to advance their argument
that Congress intended to give “investors” a broad meaning in Section 913(h), when it switched the terms.
Petitioners respond to this argument by claiming that Congress switched to “investors” to refer to
interactions between financial professionals and retail investors “before they become customers”

20
See Section 206(4), 15 U.S.C. 80b-6(4).
21
Id. at 9 (13).
22
See United States v. O’Hagan, 521 U.S. 642 (1997).
23
See R.63213-17, 63222–23, 63239, 63257, 63261, 63273, 63279, 63285.
24
See NAPFM at 2.
25
See C. Slotsky, D. Carneal, W. Yasinski, US PE/VC Benchmark Commentary: Calendar Year 2023, Cambridge
Associates, Aug. 2024, https://www.cambridgeassociates.com/insight/us-pe-vc-benchmark-commentary-calendar
-year-2023/?source=syndication.
26
Id.
27
See FS Investments, Private Market Outlook: Refilling the Glass, Fall 2024, https://fsinvestments.com/fs-
insights/q4-2024-private-markets-outlook-refilling-the-
glass/#:~:text=As%20we%20approach%20the%20end%20of%202024%2C%20sparks,hike%20cycle%20cast%20a
%20shadow%20over%20private%20markets.
28
See Reply Brief for Petitioners, NAPFM v. SEC, (5thCir. 2024) (No. 23-60471).
29
Id. at 28 (10).
 89

(emphasis added).30 Citing the Form CRS Relationships Summary, petitioners also claim that the SEC
itself has recognized that switching from “customer” to "investor” in a statute indicates an intent to reach
“an earlier stage” of the retail relationship.31 This argument is intended to offer a competing explanation
of the definition of “investor” in 913(h).
Furthermore, petitioners cite the heading of 913(h) (“Other Matters”) to argue that the term
“investor” must be read in line with the whole statute.32 The SEC claims that the heading connotes new
information than that already mentioned or implied, thus severing Section 913(h) from the preceding
statutory text. Petitioners reject this view, citing a majority opinion in Thibodeaux v. Grasso Prod. Mgmt
Inc. (2004) that the subject covered must “have some resemblance to what preceded.”33 What preceded in
Dodd-Frank was a discussion of legal protections for retail customers—not investors in private funds.
The SEC makes a futile attempt to isolate Section 913(h) from the preceding statutory text by
citing the frequent usage of “retail customers” and its heading (“Other Matters”). If anything, both pieces
of evidence support petitioners’ arguments that (i) Congress enacted the Dodd-Frank Act to regulate retail
investors, not private fund investors and (ii) the term “investors” cannot be read outside its statutory
context. This context is communicated at Section 913(b), which directs the SEC to study the
“effectiveness” of legal protections for “retail customers” involving recommendations from brokers,
dealers, or investment advisors.34 In Section 913(c), Congress identifies thirteen specific considerations
the SEC should consider in conducting the study required under 913(b). But there is no text in Section
913(b) or 913(c) that either mentions private funds or suggests anything related to private funds. The
plain subject of each subsection is retail customers, not private fund investors.
Petitioners offer support for this argument by citing Beecham v. United States (1994)35 and
Roberts v. Sea-Land (2012)36—two cases that turned on the whole-text canon of constitutional
interpretation (i.e., that statutory text must be considered as a whole, not in part). When considered as a
whole, Dodd-Frank does not authorize the SEC to regulate private fund advisers and restructure private
funds’ business models. The only text in Dodd-Frank that might imply this authorization is Section
913(h), but if Congress intended to grant this authority, it would have done so in the Dodd-Frank section
titled “Regulation of Advisers to Hedge Funds and Others.”37 It is unlikely that Congress intended to
grant the SEC broad rulemaking authority to restructure private funds and create new reporting
requirements for private fund advisers in a section five titles away that doesn’t mention private funds, and
specifically in a final sub-section titled “Other Matters.”
The SEC argues it derives this broad authority to “restructure” private funds “business models” in
Section 913(g),38 which authorizes the SEC to establish fiduciary duties for brokers and dealers.39 But like
Section 913(c), this section targets retail customers, not investors in private funds. In fact, petitioners note
that Section 913(g) states that the SEC “shall not” modify the term “customer” to “include an investor in a
private fund managed by an investment adviser.”40 Moving to the Advisers Act, petitioners argue that
Section 206(4) also does not authorize the SEC to adopt the Final Rule. Section 206(4) of the Advisers
Act authorizes the SEC to “define, and prescribe means reasonably designed to prevent,” “acts, practices,
and courses of business” that are “fraudulent, deceptive, or manipulative.”41 Petitioners contend the Final
Rule is inconsistent with this authorizing statute because it (i) does not define the fraudulent acts the Final

30
Id. at 28.
31
See Form CRS Relationship Summary, 84 Fed. Reg. 33,492, 33,542/2 (July 12, 2019).
32
Id. at 28.
33
See Thibodeaux v. Grasso Prod. Mgmt. Inc., 370 F.3d 486 (5th Cir. 2004).
34
See § 913(b)(1), 124 Stat. at 1824–25.
35
See Beecham v. United States, 511 U.S. 368, 372 (1994).
36
Id. at 13, 167–69.
37
See 124 Stat. at 1570.
38
See 88 Fed. Reg. at 63,338/1.
39
Id. at 9 (citing 124 Stat. at 1828–29).
40
Id. at 9. (citing 124 Stat. at 1829).
41
Id. at 5 (citing 6(4)).
 90

Rule prevents, (ii) explain how the Final Rule will prevent these acts, and (iii) show that the rule is
reasonably designed.42 As covered in the section above, the SEC cites their descriptions of each rule to
argue that the Final Rule is designed to prevent deception and fraud. However, the SEC’s argument is
futile because it lacks statutory authority to adopt the rules. Even if the SEC did have statutory authority,
it would need to successfully defend against petitioners’ claims that the Final Rule is arbitrary and
capricious under the APA. The SEC would struggle to defend against these claims against the backdrop
of Loper Bright Enterprises v. Raimondo (2024) which applied higher scrutiny to final agency action.43

IV. FIFTH CIRCUIT RULING

On June 5th, 2024, the Fifth Circuit vacated the SEC’s Final Rule in a judgment that turned on the
Commission’s statutory authority to adopt the Final Rule. The majority opinion opens with a discussion
of statutory interpretation, establishing that statutory text “cannot be construed in a vacuum.”44 Consistent
with the whole-text canon of statutory interpretation, the 5th Circuit holds that a term’s context takes
precedence over its ordinary use when establishing its meaning.45 The context of Dodd-Frank, per the
Court’s opinion, has “nothing to do with private funds.”46 To support this claim, the opinion frames
Dodd-Frank as a logical outgrowth of the Advisers Act and Investment Company Act of 1940 (i.e., the
Adviser Act’s “sister statute”). Both statutes impose restrictions on the internal management of
investment companies, but “preserve[] the market-driven relationship between a private fund adviser, the
fund, and outside investors.”47 Consistent with this rationale, the 5th Circuit holds that the SEC misreads
Dodd-Frank when it claims statutory authority to regulate private-fund advisers.
The Court also rejects the SEC’s argument that Congress switched to the term “investors” in
Section 913(h) to expand the Commission’s rulemaking authority in a provision “otherwise devoted” to
retail investment. The opinion also rejects the SEC’s argument that the heading (“Other Matters”) of
913(h) separates its content from the preceding statutory text. The Court cites the majority opinion in
Thibodeaux that holds the subject covered must “have some resemblance to what preceded.”48
Turning to the SEC’s claim of authority in Section 206(4), the 5th Circuit affirms petitioners’
claim that each rule was not reasonably designed to prevent fraud or deception. It holds that the SEC fails
to “define” the fraudulent acts or practices the Final Rule intends to prevent.49 The Court also steps
beyond this argument and holds that Section 206(4) fails to authorize the SEC to create disclosure and
reporting requirements.50 Under this holding, the SEC would not be able to claim statutory authority
under Section 206(4) even if the Final Rule was reasonably designed to prevent fraud or deception. This
holding could potentially limit the SEC’s scope of statutory authority in future rulemaking.

V. IMPLICATIONS FOR PRIVATE FUND ADVISERS

The SEC did not appeal the 5th Circuit’s decision—the deadline to seek a rehearing by the 5th Circuit
panel or full court expired and the Commission did not petition the Supreme Court for certiorari. As
mentioned above, the 5th Circuit’s decision is part of increasing court scrutiny of final agency actions.
Three weeks later, on June 26th, the 5th Circuit vacated the SEC’s 2022 recission of its 2020 proxy firm
disclosure rule in Nat’l Ass’n of Manufacturers v. SEC (2024).51 On June 27th, the Supreme Court also

42
Id. at 28.
43
See Loper Bright Enterprises v. Raimondo, 603 U.S. __ (2024).
44
See NAPFM 18.
45
See NAPFM at 20.
46
Id.
47
See NAPFM at 21.
48
Id. at 33.
49
See NAPFM at 23.
50
See NAPFM at 43.
51
See Nat’l Ass’n of Manufacturers v. SEC (2024), (5 thCir. 2024) (No. 23-60471).
 91

decided SEC v. Jarkesy (2024),52 entitling defendants who face civil penalties for securities fraud to jury
trials and on June 28th, the Court overturned the 40-year-old Chevron doctrine in Loper Bright.53
With this trend of increasing scrutiny of final agency action—and SEC action specifically—the
SEC will need to claim statutory authority pursuant to other provisions in the Advisers Act to target
private funds advisers. Several of the SEC’s proposed regulations in June 2024, such as the Safeguarding
Rule, rely on either Section 206(4) of the Advisers Act or Dodd-Frank Section 913(h) for statutory
authority. Focusing on Section 206(4), SEC rulemakings relying on this statute, such as certain provisions
of the Marketing Rule and investment adviser compliance rules, may face potential challenges under the
5th Circuit's ruling in NAPFM that Section 206(4) does not authorize the SEC to create disclosure and
reporting requirements. Under this precedent, the SEC will now need to “define” fraudulent or deceptive
acts before it is authorized to adopt rules “reasonably designed” to prevent such acts. The 5th Circuit’s
narrow interpretation of Section 913(h) also provides ground for future litigants to challenge SEC
rulemaking, such as the proposed predictive analytics, cybersecurity, and outsourcing rules.
While the 5th Circuit opinion benefits the private funds industry, the SEC can target private fund
advisers by using examinations and enforcement proceedings (i.e., investigations into firms for potential
violations of federal securities laws). This would involve numerous examinations conducted by the
Division of Examinations and referrals to the Division of Enforcement. Private fund advisers still retain
the benefits of limited SEC rulemaking authority, but risk reputational costs associated with potential
SEC enforcement action. Though the SEC will continue to target private fund advisers, the 5th Circuit
ruling in NAPFM is a significant win for the private funds sector.

52
See SEC v. Jarkesy, 603 U.S. __ (2024).
53
Id. at 43.
 92

OUTSIDE THE DOLLHOUSE AND INTO THE COURT:

THE IMPORTANCE OF THE “DOLL TEST” IN BROWN AND BEYOND
Ava Malkin

I. INTRODUCTION
In 1947, psychological experts Drs. Kenneth and Mamie Clark conducted an investigation,
colloquially deemed the “doll test,” which played an integral role in the Brown v. Board of Education
(1954) case and the future legal system, particularly in combination with social science research.
Conducted years before Brown made its way to the Supreme Court, this social scientific study
used identical dolls of different races. These scholars explained that their results indicated decreased self-
esteem, racial awareness, and internalization of value judgments in African American children, as young
participants responded to questions in a way that outwardly favored white dolls over black ones. During
Brown, Dr. Kenneth Clark utilized these findings in his testimony as evidence that African American
students endured psychological harm—an impaired self-image—due to segregation, thereby arguing for a
legal and psychological need for change.1 The Court then cited this evidence as part of their decision in
the Brown case; thus, the Clarks’ findings contributed to Brown’s overturning of the “separate but equal”
doctrine from Plessy v. Ferguson (1896).2
The impacts of this research extended far beyond Brown, as the use of the “doll test” in this
landmark case marked the first time the Supreme Court utilized a psychological investigation, thereby
altering the evidence type and procedure in many future cases.3 However, this psychological study and its
applications in the Court faced much criticism, as academic scholars disapproved and legal scholars
opposed the Clarks’ methodological errors. Skeptics also condemned the Court’s reliance on the “doll
test” for the Brown ruling, demonstrating the implications of this study for other discrimination-based
cases.4
To fully comprehend the importance of the Clarks’ contributions to the realms of research, law,
and psychology, this paper explores what exactly their investigation entailed, how lawyers employed the
study during Brown, why this evidence faced criticism, and how the “doll test” impacted social scientific
evidence in future court cases.

II. DESCRIPTION OF THE “DOLL TEST”

Dr. Kenneth Clark and Dr. Mamie Clark were the first two African American individuals to earn
a Ph.D. in psychology from Columbia University in the early 1940s.5 In 1947, the couple engaged this
psychological expertise to conduct a series of academic analyses surrounding racial identification,
particularly in young African American students amidst segregation in schools and constant
discrimination. The most notable of these experiments is known as the “doll test.”
In this investigation, the researchers used four dolls, identical except for their skin and hair
colors: They included two white dolls with light hair and two black dolls with dark hair. (Interestingly,
researchers actually had to paint the African American dolls brown because toy companies did not

1
Legal Defense Fund. 2024. “Brown v. Board: The Significance of the ‘Doll Test.’” NAACP Legal Defense and
Educational Fund. 2024. https://www.naacpldf.org/brown-vs-board/significance-doll-test/.
2
Bergner, Gwen. 2009. “Black Children, White Preference: Brown v. Board, the Doll Tests, and the Politics of Self-
Esteem.” American Quarterly 61 (2): 299–332. https://doi.org/10.1353/aq.0.0070
3
Benjamin, Ludy T., Ellen M. Crouse, and American Psychological Association. 2002. “The American
Psychological Association’s Response to Brown v. Board of Education. The Case of Kenneth B. Clark.” The
American Psychologist 57 (1): 38–50. https://pubmed.ncbi.nlm.nih.gov/11885301/.
4
Heise, Michael. 2005. Review of Brown v. Board of Education, Footnote 11, and Multidisciplinarity. Cornell Law
Review 90 (2): 279–320.
https://heinonline.org/HOL/Page?handle=hein.journals/clqv90&id=293&collection=journals&index=.
5
Legal Defense Fund. “Brown v. Board.”
 93

manufacture Black dolls at the time.6) Black children aged three to seven participated in this experiment,
around half of which attended segregated schools. After placing the dolls in front of the children, the
scholars asked them eight questions, prompting the students to point to a doll in an effort to determine the
young pupils’ racial perceptions, preferences, and attribution associations.7 Specifically, the Clarks asked
which doll the children would like to play with, which doll looked “nice,” which doll looked “bad,” which
doll looked white, which doll looked colored, and which doll looked like them (i.e., the child
participant).8
Most children responded in a way that favored the white doll, associating positive attributes with
it. They specifically answered that the white doll looked “nicer” and that they preferred to play with it.9
When asked to select the doll that looked like them, many children cried or left the testing room, while
other participants smiled and referred to the black doll using a racial slur. Dr. Kenneth Clark noted these
responses as upsetting and “disturbing.”10 The researchers then employed these results to identify a
damaged self-esteem among young African American pupils, which they attributed to internalized racist
messages due to the widespread segregation and discrimination during this time.11 “These children saw
themselves as inferior and they accepted the inferiority as part of reality,” Dr. Kenneth Clark explained.12
This psychological harm became a legal context for the Brown case.

III. IMPORTANCE OF THE “DOLL TEST” FOR THE BROWN OUTCOME

Dr. Kenneth Clark testified as an expert witness in one of the lower court cases synthesized into
the Brown case. In this testimony, he explained his knowledge of the psychological research surrounding
racial preferences, particularly relying on his “doll test” as evidence of the harms facing African
American children due to school segregation. This assisted the 1954 Warren Court in comprehending the
effects of segregation on its closest, most malleable subjects: children.13 With this newfound
understanding of the mental consequences of separating young pupils based on their race, the Court
reviewed four state cases and chose to overturn Plessy and its “separate but equal” doctrine, declaring that
segregation was a violation of the Equal Protection Clause of the Fourteenth Amendment.14
The Supreme Court cited the Clarks’ work in its decision. Chief Justice Earl Warren incorporated
social science evidence into Footnote 11 of the opinion, which legal scholars explain “contributed to an
increasingly empirical equal education opportunity doctrine.”15 While the opinion did not explicitly
mention the Clarks by name, J. Warren wrote, “To separate [children in grade and high schools] from
others of similar age and qualifications solely because of their race generates a feeling of inferiority as to
their status in the community that may affect their hearts and minds in a way unlikely ever to be
undone.”16 Hence, he argued that, as the “doll test” pointed out, children in segregated schools
experienced irrevocable insecurity and internalized racial narratives that could only begin to be repaired
by integration and the elimination of the “separate but equal” doctrine. J. Warren further defended this
notion under the claim that this lower self-confidence “is amply supported by modern authority.”17 In
other words, without outright referencing Drs. Clark and their experiment, he recognized that sufficient

6
Tjandra, Kristel. 2021. “Science, Civil Rights, and the Doll Test.” Peaceful Science, February 2021.
https://peacefulscience.org/articles/science-civil-rights-and-the-doll-test/.
7
Legal Defense Fund. “Brown v. Board.”
8
Tjandra. “Science, Civil Rights.”
9
Bergner. “Black Children, White Preference.”
10
Blakemore, Erin. 2018. “How Dolls Helped Win Brown v. Board of Education.” HISTORY. September 2018.
https://www.history.com/news/brown-v-board-of-education-doll-experiment.
11
Legal Defense Fund. “Brown v. Board.”
12
Blakemore. “How Dolls Helped Win Brown v. Board.”
13
Ibid.
14
Brown v. Bd. of Educ., 347 U.S. 483, 74 S. Ct. 686 (1954).
15
Heise. Review of Brown v. Board.
16
Brown 347 U.S. 483.
17
Ibid.
 94

academic research existed to illustrate the psychological harm facing the young African American
population.

IV. CRITICISMS OF THE “DOLL TEST”

i. Academic Concerns surrounding the “Doll Test”
After its recognition in Brown via Footnote 11, immediate controversy surrounded the Clarks’
“doll test.” The main criticisms began in the 1960s and 1970s, specifically focusing on the study’s
methodological and statistical downfalls.18
The technical critique mostly emphasized how the Clarks’ research contained a small sample size
of 16 participants and lacked a control group, representing a lower level of quality and complexity than
the standard.19 Many also alleged that the researchers themselves could have influenced the participants’
answers because the Clarks were both African American. Additionally, because the Clarks painted the
black dolls due to a lack of diverse dolls within the market, they could have appeared unusual or
unrecognizable to the children, further altering their responses.
Some even expressed concern that the question order may have affected participants’ answers.
Considering the fact that the children’s responses to the first few questions generally reflected negative
perceptions of the black doll, the children may not have wanted to identify with the black doll at the end
of the experiment.20 Finally, scholars were hesitant to agree with the Clarks’ causal claim between lower
self-esteem and segregation among African American children because research revealed that participants
who did not experience segregation carried the same inferiority perceptions. Therefore, many legal
experts render the Clarks’ conclusions illegitimate, claiming the evidence “did not approach the level of
scientific proof” and stating that the “doll test” did not accurately establish the negative relationship
between self-esteem and segregation.21 One legal scholar even wrote that “a competent cross-examination
might have neutralized the testimony by revealing the fallacies in the test.”22
Furthermore, future investigations found that the “doll test” might not have measured self-esteem
at all, implying that the Clarks’ perception and the Court’s argument of low self-confidence might not
have been accurate during Brown.23 Because critics worried that Brown relied too much on imperfect
social scientific evidence, they worried about the implications of the decision as social science research
evolved. This caused many individuals to reject the psychological implications described in Footnote 11,
believing that the Court should make conclusions solely based on traditional constitutional values.24

ii. References to the “Doll Test” in Other Cases

Denunciation of the “doll test” and its use in Brown was not limited to academic perspectives, as
it expanded into legal realms. Other court cases also cited and attempted to delegitimize the Clarks’
research and its impact on the Brown decision. In Stell v. Savannah-Chatham County Board of Education
(1963), for example, the plaintiffs protested desegregation in schools (i.e., disputing the Brown ruling). In
their arguments against integration, plaintiffs claimed that Dr. Kenneth Clark was the sole witness for the
“doll test” in Brown. This meant that Clark would have explained his own study, thereby calling into
question the validity of his research and claims. Judge Francis Muir Scarlett wrote in his opinion that
“[n]ot only was Dr. Clark the first authority cited by the Supreme Court in the Footnote (11) but he was
the only witness in that case who testified on the basis of tests conducted by himself.” Scarlett continued
by highlighting the aforementioned flaws in the experiment:

18
Bergner. “Black Children, White Preference.”
19
Heise. Review of Brown v. Board.
20
Tjandra. “Science, Civil Rights.”
21
Heise. Review of Brown v. Board.
22
Cahn, Edmond. 1956. Review of Jurisprudence: 1956 Survey of American Law. NYU Law Review 31 (1): 182–96.
https://heinonline.org/HOL/Page?handle=hein.journals/nylr31&id=192&collection=journals&index=.
23
Bergner. “Black Children, White Preference.”
24
Heise. Review of Brown v. Board.
 95

Apart from various experimental fallacies described as scientifically invalidating Dr. Clark's
conclusions as to injury from segregation, the Court considers most significant testimony that the
test on which Dr. Clark relied for much of his oral testimony, and conclusion in Brown, was a test
on only 16 children in a segregated school area showing a result directly contrary to an earlier
test of 300 children in both separate and mixed schools. It was further stated that Dr. Clark had
made the later test and limited it to 16 selected children for the purpose of affording a basis for
his conclusions in Brown.25
Despite these claims, and although the federal district court ruled in the plaintiffs’ favor, the Fifth Circuit
Court of Appeals rejected this argument, stating that the Brown decision decisively deemed segregation in
schools unconstitutional.
Stell was not the only case that attempted to target the illegitimacy of the Clarks’ investigation.
Evers v. Jackson Municipal Separate School District (1964) also highlighted the “doll test” as inadequate
evidence of lower self-esteem. Even a decade after Brown, some schools, including the Jackson
Municipal Separate School District, had not desegregated. A civil rights activist named Medgar Evers
filed a lawsuit, marking an initial attempt to promote inclusion, eliminate racial segregation in the South,
and enforce the Brown ruling. In Evers, Judge Sidney Carr Mize recognized how the “doll test”
highlighted a potential loss of racial identification and therefore personality deficits because of
segregation. However, she also recognized that a similar investigation showed no personality injury or
lost racial identity, thereby rendering the “doll test” on its own to be “unworthy of belief.” Specifically,
the opinion stated:
The same test was shown to have been conducted by a Negro principal of unquestioned integrity
on 85 Negro school children in the segregated schools in Jackson. Ninety-five per cent of those in
Jackson identified themselves with the Negro doll and showed a complete absence of the
personality injury which Dr. Clark testified that he found in his test of 16 which formed the sole
basis for his testimony as to personality damage in Brown. In another study by the same Dr.
Kenneth B. Clark, not called to the attention of the Supreme Court in Brown, involving many
scores of Negro children in integrated and segregated situations in the North and South, it was
reported that injury from personality conflict, if any, is suffered primarily by Negro children
reared and schooled in integrated classes of the North—not in the segregated schools of the
South. From this corroborating evidence, I am forced to find that the principal evidence of injury
relied on by the Supreme Court in Brown was unworthy of belief.26
Similar to Stell, even though legal officials recognized the downfalls of the “doll test,” the court held for
the plaintiffs, claiming that the Supreme Court’s decision in Brown still stood and that schools must begin
to integrate.

V. “THE DOLL TEST” AS A LANDMARK CASE FOR SOCIAL SCIENCE IN COURTS

Regardless of these criticisms, the “doll test” still holds extreme value for the field of law in
general, even with its flawed methods and conclusions. The “doll test’s” application in Brown marks the
first instance that the Court cited a psychological investigation in a decision. The American Psychological
Association labels this “scientific psychology's moment in a great spotlight.”27 Because the Court used the
experiment to eliminate school segregation, the Brown decision granted social science more respect and
recognition.28
Future legal cases even recognized this landmark distinction and authorization of social science
research in the courts. For instance, in Sangmeister v. Woodard (1977)—a case that determined that the

25
Stell v. Savannah-Chatham Cty. Bd. of Educ., 220 F. Supp. 667 (S.D. Ga. 1963).
26
Evers v. Jackson Mun. Separate Sch. Dist., 232 F. Supp. 241 (S.D. Miss. 1964).
27
Benjamin, Ellen, and American Psychological Association. “The American Psychological Association’s
Response.”
28
“The Doll Study – the Legacy of Dr. Kenneth B. Clark.” n.d. CUNY Academic Commons.
https://kennethclark.commons.gc.cuny.edu/the-doll-study/.
 96

practice of placing a particular party first on voting ballots violated the Equal Protection Clause of the
Fourteenth Amendment, the judge of the Seventh Circuit Court of Appeals cited the Court’s use of social
scientific investigations in Brown to validate their own implementation of similar studies. Judge Robert
Arthur Sprecher stated, “[T[he Supreme Court has never taken so limited a position on the evidentiary
uses of social science studies. In Brown v. Board of Education, 347 U.S. 483, 98 L. Ed. 873, 74 S. Ct. 686
(1954), the Court relied on several general social science studies in concluding that segregation was
harmful to black children.” He continued,” “Those studies were cited and relied on notwithstanding the
fact that Professor Kenneth Clark had conducted specific doll tests on the black children who were the
plaintiffs in one of the consolidated cases and testified as to the results of those tests.”29 Thus,
Sangmeister serves as confirmation that the “doll test” and its application entirely altered evidence
processes.
By underscoring the practicality of psychology in legal realms, the “doll test” paved the way for
more legal cases beyond Sangmeister to employ social scientific research. Michele Bisaccia Meitl, an
assistant professor of criminal justice, investigates the use of social science research in the courts, stating
that judges are “experts in law and precedent, but they may not be experts in brain development or [jury]
deliberation… They look to the outside world… to inform them of these things.”30 Bisaccia Meitl
discovered that around 40% of “the criminal procedure cases decided by the Court where Fourth, Fifth,
Sixth, Eighth, or Fourteenth Amendment issues were decided” between 2001 and 2015 used social
science research, which is a significant increase from 14% in 1990 and 10% in 1978.31
This increasingly large portion of cases employing social science investigations likely has roots in
the “doll test.” Since Brown, the courts now use social science research, including expert testimony,
related/existing studies, public opinion polls, and original investigations specific to that case, which
assists legal professionals in understanding the contexts and implications of their cases.32 While the
Supreme Court did not establish its standard for the admission of scientific evidence until Daubert v.
Merrell Dow Pharmaceuticals, Inc. (1993), the “doll test” clearly set a standard that permitted social
science to make its way into courts, and it generated a level of respect for psychological fields in law.33

VI. CONCLUSION
Overall, the “doll test” served as an incremental investigation to justify the claim that segregation
actively and irrevocably harmed young African American children, playing a crucial role in the decision
of the well-known, impactful Brown case. With such influence came many objections, and the “doll
test’s” integral function in desegregation yielded many critical interpretations. However, it is essential to
note that some of these denunciations in court cases (e.g., Stell) were rooted in deeper racism and a
refusal to integrate despite the Brown ruling. However, hesitation surrounding the Clarks’ academic
methodology, namely their sample size, biases, question order, and causal claims, are valid and necessary;
yet, that does not detract from the fact that this experiment was monumental for many legal cases to
come, as it warranted and promoted future use of psychological investigations in courts.
Therefore, not only did this doll study highlight a critical implication of racial segregation
plaguing the lives of many living in the segregated world of the early 20th century, but it also helped
begin to counteract discrimination and legalized racism while also authorizing the use of social scientific
evidence in courts.

29
Sangmeister v. Woodard, 565 F.2d 460, 466 (7th Cir. 1977)
30
Collier, Caroline. 2022. “U.S. Supreme Court Justices Use Social Science Research in Rulings.” TCU Magazine.
May 10, 2022. https://magazine.tcu.edu/summer-2022/supreme-court-uses-social-science-michele-meitl/.
31
Bisaccia Meitl, Michele, Nicole Leeper Piquero, and Alex Piquero. 2019. “The Gradual Warm-Up: The United
States Supreme Court’s Reliance on Social Science Research in Constitutional Criminal Law and Procedure
Opinions, 2001-2015.” Deviant Behavior 41 (12): 1575–84. https://doi.org/10.1080/01639625.2019.1635290.
32
Collins, S M. 1978. Review of Use of Social Research in the Courts. Knowledge and Policy: The Uncertain
Connection. https://www.ojp.gov/ncjrs/virtual-library/abstracts/use-social-research-courts-knowledge-and-policy-
uncertain.
33
Monahan, John, and Laurens Walker. 1990. Social Science in Law.
 97

“NOWHERE ELSE TO GO”:

CRIMINALIZING HOMELESSNESS IN CITY OF GRANTS PASS V. JOHNSON
Tess O’Donoghue

During the consequential 2023–2024 Supreme Court term, one key case received minimal media
attention: City of Grants Pass v. Johnson, which essentially criminalized homelessness by allowing city
governments to fine and jail the unsheltered homeless for sleeping in public. Oral arguments involved
three main subjects of debate: the extent to which homelessness is involuntary and should be considered a
protected status, whether the City’s response to homelessness constitutes “cruel and unusual” punishment,
and how the law relates to the City’s policy-making authority. The majority held that “the enforcement of
generally applicable laws regulating camping on public property does not constitute ‘cruel and unusual
punishment’ prohibited by the Eighth Amendment.”1
This article will proceed in three parts. First, it will situate the City’s law within the context of
local and national homelessness and describe the relevant precedents that framed the justices’ disposition.
Secondly, it will report and discuss arguments on both sides addressing the three core questions of the
case. Finally, it will consider the current and potential impacts of the majority’s ruling. This analysis will
demonstrate that contrary to the Court’s ruling, a law that imposes fines and jail time on unhoused people
who sleep in public spaces violates the Eighth Amendment’s prohibition of cruel and unusual punishment
by inflicting an inescapable cycle of debt and imprisonment upon American citizens. A number of states
and municipalities have adopted and others are considering adopting laws similar to those presented to the
Court, putting millions of vulnerable Americans who lack an alternative course of action at risk of
descending into permanent homelessness.

I. BACKGROUND
i. The Reality of Homelessness in the U.S. and Grants Pass
A court must evaluate each case on its merits while considering how a decision could be applied
to other contexts once it joins the body of constitutional law. Too often, however, the full lived
experiences of many people affected by a particular case are left out of the Court’s analysis entirely. In
Grants Pass, Justice Sotomayor opens and closes her dissent by reminding her readers of their stories,
establishing that “homelessness in America is a complex and heartbreaking crisis” caused by stagnant
wages, domestic abuse, disability, and other tragic factors outside individual control.2 An analysis of this
case should be similarly grounded in reality.
According to the United States Interagency Council on Homelessness, “[i]n effect, more than half
of Americans live paycheck to paycheck and one crisis away from homelessness.”3 And, for each day a
person goes without a home, their chance of getting back on their feet drops, and their chance of falling
into chronic homelessness rises.4 As a result, “roughly 650,000 people in America were homeless on any
given night” in 2023.5 Forty percent of these people “are unsheltered, sleeping ‘in places not meant for

1
City of Grants Pass v. Johnson, 603 U.S. ___, 2 (2024), https://www.supremecourt.gov/opinions/23pdf/23-
175_19m2.pdf.
2
City of Grants Pass v. Johnson, 603 U.S. ___, 1 (2024) (Sotomayor, J., dissenting),
https://www.supremecourt.gov/opinions/23pdf/23-175_19m2.pdf.
3
“History of Homelessness,” Homelessness Data & Trends, United States Interagency Council on Homelessness,
accessed November 3, 2024, www.usich.gov/guidance-reports-data/data-trends.
4
Ezra Klein, host, The Ezra Klein Show, “What We Learned From the Deepest Look at Homelessness in Decades,”
The New York Times, July 18, 2023, at 24:30, podcasts.apple.com/us/podcast/the-ezra-klein-
show/id1548604447?i=1000621491531.
5
“Criminalizing Homelessness Won't Make It Go Away,” The New York Times, New York City, NY, April 2024,
educational video, at 1:12, www.youtube.com/watch?v=SE_S-dY5ZHM.
 98

human habitation,’ such as sidewalks, abandoned buildings, bus or train stations, camping grounds, and
parked vehicles.”6
In Grants Pass, a city with a population of roughly 40,000,7 there are more than 600 unhoused
people, and Gospel Rescue Mission, the only entity in the city that offers a temporary place to sleep, has
fewer than 100 beds available.8 Regardless, per the city’s two “anti-camping” ordinances, a “park
exclusion” ordinance, and a “park exclusion appeals” ordinance, it is illegal to sleep on sidewalks, streets,
or alleyways; start a fire on public property; or park overnight in a city park.9 Grants Pass defines
“campsite” broadly, “as any place a homeless person is while covered with a blanket.”10 When an
unhoused person violates these ordinances, he is first fined $295, which increases to $537.60 if the first
fine is unpaid; if he is cited again for violating the regulation within one year, he is barred from city parks
for thirty days; finally, if he remains in the park, he is criminally charged with trespassing and can be
subjected to up to 30 days in jail and a $1,250 fine.11
The case cites multiple interactions between the unhoused and the police, which demonstrate the
unique position of powerlessness that the homeless inhabit.12 A driver pulled over for a traffic violation
may successfully convince the officer not to issue a ticket or contest it in writing, but unhoused people
have no such influence. When a young woman in Grants Pass received a ticket, she explained that she
could not find shelter, but the officer responded by throwing her only belongings in the trash and calling
them “rubbish.”13 Another Grants Pass resident who had experienced homelessness for twenty years
couldn’t access housing because his arrests interrupted communication with his outreach worker.14 A
disabled Marine Corps veteran was arrested repeatedly for sleeping in public and lost all of his
belongings, including the tools he used to make a living, on each occasion.15 A woman received 30 tickets
totaling $9,000 in fines in the past year and a half alone. She sees these fines, which she cannot afford to
pay, as tickets “for existing.”16 These are just a handful of the many stories that illustrate how Grants
Pass’s laws destroy the lives of people who have no other options, making the lives of the most
vulnerable among us unlivable.

ii. Relevant Precedents

The foundational precedent for this case is Robinson v. California (1962), in which the petitioner
challenged a California statute that criminalized being addicted to narcotics. In its decision, the Supreme
Court made a distinction between behavior and status, ruling that a person “could be arrested for using

6
Tanya de Sousa et al., “The 2023 Annual Homeless Assessment Report to Congress,” The U.S. Department of
Housing and Urban Development, December 2023, 2, https://www.huduser.gov/portal/sites/default/files/pdf/2023-
ahar-part-1.Pdf.
7
“Grants Pass City, Oregon,” QuickFacts, United States Census Bureau, accessed November 29, 2024,
https://www.census.gov/quickfacts/fact/table/grantspasscityoregon/POP060210.
8
City of Grants Pass v. Johnson, Docket No. 23–175, 603 U.S. ___ (U.S. Supreme Court, Apr. 22, 2024, Oral
Argument at 00:04:41–00:05:00).
9
City of Grants Pass, 603 U.S. ___, at 11.
10
City of Grants Pass v. Johnson, Docket No. 23–175, 603 U.S. ___ (U.S. Supreme Court, Apr. 22, 2024, Oral
Argument at 01:49:00–01:49:05).
11
City of Grants Pass, 603 U.S. ___ (Sotomayor, J., dissenting), at 8–9.
12
Christopher Mayer and Jessica Reichert, “The Intersection of Homelessness and the Criminal Justice System,”
The Illinois Criminal Justice Information Authority, July 3, 2018, https://icjia.illinois.gov/researchhub/articles/the-
intersection-of-homelessness-and-the-criminal-justice-system.
13
“Homeless Woman Shares How Grants Pass is Ticketting and Throwing Away Her Belongings,” InvisiblePeople,
Grants Pass, Oregon, June 20, 2024, at 0:40, https://www.youtube.com/shorts/kHy9S6VVy2c.
14
City of Grants Pass, 603 U.S. ___ (Sotomayor, J., dissenting), at 7.
15
City of Grants Pass, 603 U.S. ___ (Sotomayor, J., dissenting), at 6.
16
“Criminalizing Homelessness,” at 3:50.
 99

illegal drugs–a behavior–but not for being addicted to them, a status.”17 Robinson determined that the
Eighth Amendment set “limits on what can be made criminal and punished as such” in addition to
regulating the punishments themselves.18 Six years later, the Court decided Powell v. Texas (1968), which
concerned laws criminalizing public drunkenness. The majority noted that the Eighth Amendment has
historically been applied to limit specific punishments, not the government’s right to punish certain acts.
Robinson did not apply because the Powell defendant was convicted for “being in public while drunk on a
particular occasion,” not “for being [an] alcoholic.”19 Four dissenting justices vigorously opposed the
prosecution of conditions that individuals lack the power to change.20
The Court applied Powell’s reasoning in Jones v. United States (1983) and Kahler v. Kansas
(2020). In Jones, the Court held that the government may confine a criminal defendant to a mental
institution based on an insanity judgment.21 In Kahler, the Court concluded that, under the Eighth and
Fourteenth Amendments, a state need not adopt an insanity test to measure whether or not the defendant
can recognize that his behavior is wrong.22 The Grants Pass majority relied on these two precedents23 and
criticized the dissent for not discussing them.24
Finally, the Court considered Martin v. Boise, a 2018 case decided by the Ninth Circuit that
concerns a law very similar to that of Grants Pass. Robert Martin, an unhoused man in Boise, Idaho, was
charged with violating a city ordinance against camping in public, and he sued Boise on the grounds that
its ordinance was inconsistent with the Eighth Amendment’s prohibition against cruel and unusual
punishment. After Martin prevailed in district court, the Ninth Circuit ruled that the lack of shelter beds in
Boise made Martin’s homelessness involuntary and, consequently, immune from punishment. As a result,
the public camping ordinance could not be enforced if the number of unhoused people exceeds the
number of “practically available” shelter beds.25 Boise appealed, but the Supreme Court refused to grant
certiorari.

iii. Case Facts

In October 2018, the Oregon Law Center filed a class action lawsuit on behalf of Debra Blake,
asserting that Martin outlawed the cruel and unusual punishments inflicted by the City of Grants Pass
against its unhoused by imposing fines for sleeping in public. The district court agreed, recognizing the
involuntary nature of homelessness and ruling that the fines imposed violated the Eighth Amendment
because they were designed to deter the unhoused from living in Grants Pass and were disproportionate to
the act of sleeping in public.26 In July 2020, the district court granted summary judgment in favor of the
plaintiffs and issued a Martin injunction to prevent the city from enforcing its laws.27
The Ninth Circuit affirmed the district court’s judgment– and went one step further in favor of the
plaintiffs. The panel believed that prohibiting stoves, fires, or makeshift dwellings left unhoused people
vulnerable to the elements and effectively deprived them of sleep. Consequently, the panel remanded the
case and instructed the district court “to craft a narrower injunction recognizing Plaintiffs’ limited right to

17
Maureen Groppe, “Supreme Court Takes Up Homelessness As Record Numbers of Americans Lack Permanent
Housing,” USA Today, April 22, 2024, https://www.usatoday.com/story/news/politics/2024/04/21/supreme-court-
ticketing-cruel-punishment/73405633007/.
18
Ingraham v. Wright, 430 U.S. 651, 667 (1977), https://tile.loc.gov/storage-
services/service/ll/usrep/usrep430/usrep430651/usrep430651.pdf.
19
Powell v. Texas, 392 U.S. 514, 531–532 (1968), https://tile.loc.gov/storage-
services/service/ll/usrep/usrep392/usrep392514/usrep392514.pdf.
20
“Powell v. Texas,” Oyez, accessed November 3, 2024, https://www.oyez.org/cases/1967/405.
21
Jones v. United States, 463 U.S. 354 (1983), https://supreme.justia.com/cases/federal/us/463/354/#opinions.
22
“Kahler v. Kansas,” Oyez, accessed November 3, 2024, https://www.oyez.org/cases/2019/18-6135.
23
City of Grants Pass, 603 U.S. ___, at 23.
24
City of Grants Pass, 603 U.S. ___, at 32.
25
City of Grants Pass, 603 U.S. ___, at 1.
26
City of Grants Pass, 603 U.S. ___ (Sotomayor, J., dissenting), at 27.
27
“City of Grants Pass v. Johnson,” Oyez, accessed November 3, 2024, https://www.oyez.org/cases/2023/23-175.
 100

protection against the elements, as well as limitations when a shelter bed is available.”28 When Grants
Pass’s request for a rehearing en banc was denied, attorneys for the city then filed a writ of certiorari with
the Supreme Court, which was granted in January 2024.29
Since 2018, when the Ninth Circuit decided Martin v. Boise and Blake filed her complaint against
Grants Pass, homelessness had risen a whopping 5.36 percent nationwide.30 Politicians and organizations
on both sides of the aisle had called for clarification of the Ninth Circuit’s ruling in Boise, which has
governed responses to homelessness throughout the West for the past six years. They asked the court to
clarify the definition of “adequate shelter” and “involuntarily homeless” and stipulate what cities are
required to provide.31 On June 28, the Supreme Court reversed and remanded the Ninth Circuit’s ruling.
Justice Gorsuch wrote the majority opinion, joined by Justices Roberts, Thomas, Alito, Kavanaugh, and
Barrett.32 Justice Thomas wrote a concurring opinion. Justice Sotomayor wrote a dissenting opinion,
joined by Justices Kagan and Jackson.
Throughout oral argument, the justices sought to clarify the scope of Grants Pass’s ordinances to
determine if striking them down would prevent the city from addressing public health and safety
concerns. Counsel for the unhoused stated clearly that plaintiffs were not challenging Grants Pass’s
ability to “ban tents[;] clear encampments[; or prohibit] littering, public urination, defecation, drug use
and violent or harassing behavior.”33 If the court ruled against the petitioners, Grants Pass could continue
to fine people with “physical and legal access to” a shelter, including shelters outside of city lines.34
Instead, the essential question of the case is whether the government could– at any time and in any public
location within the city– punish people who slept in public because they had nowhere else to go.

II. QUESTIONS FACING THE COURT

To make the case for Grants Pass’s ordinances, Theane D. Evangelis, the attorney for the City of
Grants Pass, raised three main arguments that were discussed in this case: (1) The Ninth Circuit misread
the meaning of Robinson and abandoned the holding of Powell by treating homelessness as a status; (2)
the Eighth Amendment governs the nature of punishments imposed, not whether or not they can be
imposed, and is not relevant to Grants Pass’s ordinances; and (3) municipalities could not practically
implement the appellate ruling.35

i. Is Homelessness a Status?
The Court ruled that Grants Pass’s ordinances do not implicate Robinson because, as Evangelis
argued, they do not criminalize status. The ruling relied on Powell v. Texas (1968), in which the Supreme
Court upheld a law prohibiting public drunkenness, even by those with addictions to alcohol. In the eyes
of the Grants Pass majority, “this case is no different from Powell” because the challenged laws target
specific actions, not statuses; thus, Robinson does not apply.36 In other words, the Powell Court rejected

28
City of Grants Pass, 603 U.S. ___ (Sotomayor, J., dissenting), at 10.
29
"City of Grants Pass, Oregon v. Johnson,” SCOTUSblog, accessed November 3, 2024,
www.scotusblog.com/case-files/cases/city-of-grants-pass-oregon-v-johnson/.
30
“State of Homelessness: 2024 Edition,” Homelessness in America, National Alliance to End Homelessness,
accessed November 3, 2024, endhomelessness.org/homelessness-in-america/homelessness-statistics/state-of-
homelessness/#homelessness-trends-over-time.
31
Katrin Bennhold, host, The Daily, “The Supreme Court Takes Up Homelessness,” The New York Times, April
19, 2024, at 19:00, www.nytimes.com/2024/04/19/podcasts/the-daily/supreme-court-homelessness.html.
32
"City of Grants Pass, Oregon v. Johnson.”
33
City of Grants Pass v. Johnson, Docket No. 23–175, 603 U.S. ___ (U.S. Supreme Court, Apr. 22, 2024, Oral
Argument at 01:50:24–01:50:34).
34
City of Grants Pass v. Johnson, Docket No. 23–175, 603 U.S. ___ (U.S. Supreme Court, Apr. 22, 2024, Oral
Argument at 01:57:27–01:57:40).
35
City of Grants Pass v. Johnson, Docket No. 23–175, 603 U.S. ___ (U.S. Supreme Court, Apr. 22, 2024, Oral
Argument at 00:00:55–00:01:10).
36
City of Grants Pass, 603 U.S. ___, at 23.
 101

the argument that the plaintiff’s alcoholism left him without control over when and where he became
drunk. Similarly, the Grants Pass majority argued, bringing a blanket or tent to a public park for the night
is a distinguishable, deliberate act; because one could avoid violating the law by moving to the next town
over, deciding to stay in town is criminal. To distinguish the criminalized behaviors from homelessness,
the majority highlighted a challenged Grants Pass ordinance that prevents people from sleeping with
bedding, a chair, or any other materials that could be used to remain “in a single location of City property
for more than 24 hours,” regardless of “whether or not 24 hours have passed.”37
To come to this conclusion, the Court rejected the reasoning presented by the advocate for the
Respondents, Kelsi B. Corkan, which argued that homelessness should be considered a status and how the
City criminalizes it. Evangelis argued that homelessness is not a Robinson status because a person can be
homeless one day and housed the next;38 in response, Corkran reminded the Court that Robinson
established that the “permanency of the condition” does not affect whether or not it is a status.39 She
further defined “status” as “something that you are[,] apart from anything you do” and listed “having
cancer” or “being poor” as examples.40 She argued that “adding a universal human attribute [such as the
need for sleep] to the definition of the offense” does not “make the punishment conduct-based instead of
status-based.”41 Therefore, Corkran concluded, the City’s ordinances punish on the basis of status because
an unhoused person without shelter cannot suppress his need to sleep.
Furthermore, the majority’s reliance on Powell as a precedent was misplaced because Grants
Pass is distinguishable from Powell in both the nature of the behavior in question and the significance of
the public setting. In Powell, the justices concluded that a state need not decide “what part of a
defendant’s personality is responsible for their actions” (italics added).42 The question of Grants Pass is
not one of “personality” or of mental state, as it was in Kahler; it is a question of “an essential bodily
function.”43 And, while the plaintiff in Powell could enter a private space before drinking, unsheltered
homelessness by definition exists in public. If a person is without a home and cannot access a shelter bed,
there is no place in the city where they can legally exist.
Finally, although the majority claims that the challenged ordinances evenly apply to the housed
and unhoused, they clearly target those without an alternative place to sleep. The text empowers officers
to regulate the use of bedding or sleeping bags in public only when it is “for the purpose of maintaining a
temporary place to live,”44 and Grants Pass police officers reported that “someone violates the Ordinance
only if he or she does not ‘have another home to go to.’”45 By asserting that this statute applies to all
people, from the unhoused to tourists to backpackers to protestors,46 the majority turned a blind eye to the
reality on the ground in which only unhoused people had received tickets for sleeping in public spaces
while stargazers with sleeping bags were permitted to sleep in public.47 In this way, Grants Pass’
ordinances explicitly target people experiencing homelessness, a Robinson status that should be protected.

37
“City of Grants Pass Municipal Code” (Grants Pass, Oregon), 5.61.010,
https://www.grantspassoregon.gov/DocumentCenter/View/38/Title-5--Nuisances-and-Offenses-?bidId=.
38
City of Grants Pass v. Johnson, Docket No. 23–175, 603 U.S. ___ (U.S. Supreme Court, Apr. 22, 2024, Oral
Argument at 00:10:23–00:10:37 and 00:29:54–00:29:57).
39
City of Grants Pass v. Johnson, Docket No. 23–175, 603 U.S. ___ (U.S. Supreme Court, Apr. 22, 2024, Oral
Argument at 02:20:29–02:20:44).
40
City of Grants Pass v. Johnson, Docket No. 23–175, 603 U.S. ___ (U.S. Supreme Court, Apr. 22, 2024, Oral
Argument at 01:53:12–01:53:55).
41
City of Grants Pass v. Johnson, Docket No. 23–175, 603 U.S. ___ (U.S. Supreme Court, Apr. 22, 2024, Oral
Argument at 01:49:40–01:49:51).
42
Powell v. Texas, 392 U.S. 514, at 540–541.
43
City of Grants Pass, 603 U.S. ___ (Sotomayor, J., dissenting), at 16.
44
City of Grants Pass, 603 U.S. ___, at 14.
45
City of Grants Pass, 603 U.S. ___ (Sotomayor, J., dissenting), at 18.
46
City of Grants Pass, 603 U.S. ___, at 20.
47
City of Grants Pass, 603 U.S. ___ (Sotomayor, J., dissenting), at 14.
 102

ii. To What Extent is the Eighth Amendment Applicable?

The Court considered two questions regarding the application of the Eighth Amendment to this
case: whether the City should be permitted to impose any punishments for sleeping in public, and whether
the punishments it has imposed are “cruel and unusual.” The majority decided that the Cruel and Unusual
Punishments Clause only considers the nature of punishments imposed, not whether or not a behavior can
be criminalized. It also ruled that the fines and jail time imposed by Grants Pass were neither cruel nor
unusual.48
Firstly, the majority established that the Eighth Amendment does not speak to a city’s ability to
criminalize a behavior. This contradicts the Court’s ruling in Robinson, which established that the number
of days of imprisonment was irrelevant because simply imposing a criminal penalty upon people who
could not change their behavior violates the Eighth Amendment.49 To address this, the Grants Pass
majority depicted Robinson as an anomaly in the history of Eighth Amendment jurisprudence but did not
overturn it; rather, the Court repeated its assertion that Robinson does not apply because Grants Pass’s
ordinances do not criminalize status. Secondly, the Court determined that the meaning of “cruel and
unusual” does not apply to the fines and jail time that Grants Pass imposed. The majority relied on an
outdated understanding of the phrase “cruel and unusual,” noting that, in the eighteenth century, “cruel
and unusual punishments” included “drawing and quartering or public dissection.”50 It further argued that
“limited fines for first-time offenders” are not cruel or unusual because “they are not designed to cause
‘terror, pain, or disgrace’” (italics added).51
To determine whether it is “unusual” to punish a person without shelter for sleeping in public, it
is essential to consider the context within which this behavior exists, or more specifically, how the
experience of homelessness in the U.S. fits into the global landscape. Housing is significantly less
affordable than in other industrialized nations; in 2022, roughly 50% of low-income private tenants spent
more than 40% of their income on rent.52 This is 15% higher than the average among countries in the
OECD (Organization for Economic Co-operation and Development), and it makes homelessness almost
impossible for the American poor to avoid. In addition, the U.S. had a higher rate of unsheltered
homelessness than almost all of its OECD peers in 2023.53 Therefore, the U.S. is quite “unusual” not only
in the high rates of homelessness its citizens experience but also in its lack of temporary shelters. By
ignoring the outsized contribution of economic conditions and public policies– which the unhoused
cannot control– to the existence of homelessness in the U.S., the City severed the behaviors associated
with homelessness from their proper context. In turn, it has imposed punishment without full
consideration of the factors that contributed to the “crime,” which is both irresponsible and unusual. In
addition, Justice Sotomayor rightly pointed out that “the burdens of homelessness fall disproportionately
on the most vulnerable in our society,”54 such as those from low-income backgrounds, people with
disabilities and mental illnesses, veterans, and immigrants, among others. Criminalizing homelessness is

48
City of Grants Pass, 603 U.S. ___, at 3.
49
City of Grants Pass, 603 U.S. ___, at 11.
50
Maurice Chammah, Shannon Heffernan, and Beth Schwartzapfel, “This Supreme Court Case on Homelessness
May Limit Prisoner Rights and Expand Executions,” The Marshall Project, April 10, 1014,
https://www.themarshallproject.org/2024/04/10/supreme-court-homeless-grants-pass-
originalism?gad_source=1&gclid=Cj0KCQjwjY64BhCaARIsAIfc7YY9-
cVXPbyDLjst5jlSxyEldD8e2R9etQcE5WT_UAseEmvp1Lp-SYcaAkzEEALw_wcB.
51
Bucklew v. Precythe, 87 U.S., 130 (2019), https://www.supremecourt.gov/opinions/18pdf/17-8151_1qm2.pdf.
52
“Affordable Housing,” OECD, accessed November 3, 2024, https://www.oecd.org/en/topics/sub-
issues/affordable-housing.html.
53
“Population Experiencing Homelessness,” Affordable Housing Database, OECD, 2023,
https://www.oecd.org/content/dam/oecd/en/data/datasets/affordable-housing-database/hc3-1-homeless-
population.pdf.
54
City of Grants Pass, 603 U.S. ___ (Sotomayor, J., dissenting), at 4.
 103

“cruel and unusual” because it targets the vulnerable people who experience this status,55 regardless of the
punishment imposed.
The Court was also remiss in its characterization of the punishments imposed by the City; by
relying on the Framers’ view of the Eighth Amendment, the majority overlooked the long-lasting harms
that the ordinances caused. Contrary to the majority opinion, Weems v. United States (1910) and Trop v.
Dulles (1958) established that the Court is not bound by the Framer’s understanding of “cruel and
unusual;” rather, the Amendment must be applied based on “evolving standards of decency that mark the
progress of a maturing society.”56 A “maturing society” should not view punishment in isolation but must
consider cascading implications. The penalty fine is essentially a tax on homelessness because it only
applies to those who cannot pay the initial ticket and it mandates incarceration for those who remain
unable to pay. In turn, a criminal record makes the difficult process of finding employment or housing
while homeless even more challenging. Therefore, as the Ninth Circuit concluded, the Eighth Amendment
applies to Grants Pass because civil penalties “can ‘later… become criminal offenses.’” Justice Thomas
refutes this, suggesting in his concurrence that the potential for criminal penalties does not warrant the
application of the Eighth Amendment to the initial civic penalties.57 But if an unhoused person cannot
find shelter or pay his fines, the transformation of his civil penalty into a criminal offense is beyond his
control. Indeed, Evangelis herself conceded that if homelessness were considered a status under
Robinson, Grants Pass’ ordinances would violate the Eighth Amendment.58

iii. Is the Ninth Circuit’s Ruling Workable?

The majority opinion decided that the Ninth Circuit’s ruling was “unworkable” because
governments cannot be held responsible for determining what constitutes involuntary behavior or how
many shelter beds are “practically available.”59 Furthermore, the opinion stated that federal courts’
intervention to protect the unhoused would violate the agency of “the American people” in these matters.
Many experts have pointed out that the City’s response does not seek to reduce homelessness but
simply to reduce its visibility by forcing unsheltered people into jails or out of town.60 To illustrate this,
the dissent cites a study in which 91 percent of recipients of a “move-along order” continued to live
outside, only walking two or three blocks away.61 This demonstrates that the city’s punishments did not
incentivize unhoused people to seek shelter. Edwin Kneedler, an independent attorney, presented a
relevant amicus curiae statement to the Court in which he argued that the government cannot make “it
unlawful for a person to reside in the jurisdiction” simply because of their status. Indeed, if every town
implemented such ordinances, as this ruling allows, an unhoused person would be unable to exist. They
would have no choice but to constantly move from town to town, away from friends, family, community
ties, familiar resources, and any chance of escaping homelessness.62
The majority also fails to establish how fines and jail time remedy the issues that plague homeless
encampments, such as sexual assault, drug abuse, and unsanitary conditions.63 As the dissent points out,
move-along orders push unhoused people into unfamiliar areas where they are more vulnerable to rape
and other forms of violence,64 and the criminalization of homelessness discourages people from calling

55
City of Grants Pass, 603 U.S. ___ (Sotomayor, J., dissenting), at 29.
56
Trop v. Dulles, 356 U.S. 86, 100–01 (1958), https://tile.loc.gov/storage-
services/service/ll/usrep/usrep356/usrep356086/usrep356086.pdf.
57
City of Grants Pass, 603 U.S. ___, at 41.
58
City of Grants Pass v. Johnson, Docket No. 23–175, 603 U.S. ___ (U.S. Supreme Court, Apr. 22, 2024, Oral
Argument at 00:49:59–00:50:28).
59
City of Grants Pass, 603 U.S. ___, at 27.
60
Bennhold, “The Supreme Court,” at 8:20.
61
City of Grants Pass, 603 U.S. ___ (Sotomayor, J., dissenting), at 6.
62
City of Grants Pass v. Johnson, Docket No. 23–175, 603 U.S. ___ (U.S. Supreme Court, Apr. 22, 2024, Oral
Argument at 00:54:40–00:55:10).
63
City of Grants Pass, 603 U.S. ___ (Sotomayor, J., dissenting), at 3.
64
City of Grants Pass, 603 U.S. ___ (Sotomayor, J., dissenting), at 30.
 104

the police in such emergencies.65 This suggests that homelessness policy is perhaps less workable with
such ordinances than without them.
Finally, and perhaps most importantly, it is impractical to relieve city leaders of their
responsibility to consider the availability of shelter beds, one of the key determinants of homelessness, as
they create their laws. Grants Pass’s shelter has beds for less than a quarter of its homeless population,66
and disincentivizing efforts to address such a shortage places the onus on homeless people to find shelter
that doesn’t exist. By relieving cities of this responsibility, the majority empowers them to pursue
incomplete policy solutions that do not account for the immediate, basic needs of the unhoused. For
instance, Evangelis highlighted an element of Grants Pass’s policy that she believes to be “an important
part of the puzzle” of addressing homelessness: unhoused people are often connected with substance
abuse treatment programs after being jailed. What the Court failed to acknowledge is that unhoused
people– with or without substance abuse issues– still lack a place to sleep when they are released from
jail.67 And when the basic human need for shelter is not met, we deny people the chance to address their
other mental and physical health concerns and to escape homelessness.
When oral arguments were heard, the central question in the case– whether the government could,
at any time and in any public location within the city, punish people who slept in public because they had
nowhere else to go– was no longer relevant to the City of Grants Pass. In 2023, Oregon passed Rev. Stat.
§195.530, which states, “Any city or county law that regulates the acts of sitting, lying, sleeping or
keeping warm and dry outdoors on public property that is open to the public must be objectively
reasonable as to time, place and manner with regards to persons experiencing homelessness.”68 Because
the ordinances that were the subject of this case constitute a 24/7, citywide ban, they were no longer legal
under §195.530, and it would have been appropriate for the Court to refrain from ruling on this question.69
This casts doubt on the majority’s assertion that, by preserving the ordinances, it had exercised judicial
restraint and left the issue of homelessness up to “the democratic process.”70 In reality, the Court actively
rejected the decision of Oregon voters and vastly expanded the authority of city leaders to infringe on
vulnerable individuals’ Eighth Amendment rights.

III. MOVING FORWARD

The Court’s ruling in Grants Pass v. Johnson is already wreaking havoc on cities like Chico,
California, where officials are weaponizing the Grants Pass decision against the unhoused. The
settlement of Warren v. Chico (2022), which relied on the Ninth Circuit’s decision in Martin v. Boise,
required Chico to document the numbers of unhoused residents and available shelter beds before
enforcing its anti-camping ordinances or seizing private property.71 Replicating the language used by
Justice Gorsuch in the majority opinion, Chico now claims the Warren Settlement agreement has proven
“unworkable.”72 On August 31, 2024, barely two months after the Court issued its ruling and rejected
Martin v. Boise, Chico filed a motion to withdraw from the Warren Settlement.73 Legal Services of

65
Bennhold, “The Supreme Court.,” 23.
66
City of Grants Pass, 603 U.S. ___ (Sotomayor, J., dissenting), at 22.
67
City of Grants Pass v. Johnson, Docket No. 23–175, 603 U.S. ___ (U.S. Supreme Court, Apr. 22, 2024, Oral
Argument at 00:45:27–00:45:43).
68
OR. Rev. Stat. §195.530(2)(2023), https://www.oregonlegislature.gov/bills_laws/ors/ors195.html.
69
City of Grants Pass v. Johnson, Docket No. 23–175, 603 U.S. ___ (U.S. Supreme Court, Apr. 22, 2024, Oral
Argument at 01:47:54–01:48:21).
70
City of Grants Pass, 603 U.S. ___, at 10.
71
“Warren v. Chico Settlement Agreement,” (Chico, California, 2022),
https://policycommons.net/artifacts/2459830/warren-v/3481627/.
72
City of Chico, “Warren v. City of Chico – Alternate Site,” news release, August 8, 2024, 2,
https://chico.ca.us/documents/City-of-Chico-Press-Release-Alternate-Site-08-08-2024-FINAL.pdf.
73
Hannah Gutierrez, “Chico Files Motion to Withdraw from Warren v. Chico Settlement, Cites Grants Pass
Ruling,” abc7 KRCR, September 3, 2024, https://www.krcrtv.com/news/local/chico-files-motion-to-withdraw-from-
warren-v-chico-settlement-cites-grants-pass-ruling.
 105

Northern California (LSNC), which represented the unhoused plaintiffs in Warren v. Chico, expressed
willingness to renegotiate the agreement; however, contrary to the outcome of Grants Pass, LSNC is
insisting that the city assess unhoused individuals and refer them to adequate shelter within 72 hours of
eviction. It argues that destroying the Warren Settlement would decrease leaders’ incentive to craft
policies that actually reduce homelessness and treat unhoused people with dignity and care.74 At the time
of publication, this case has not been decided. Regardless of the outcome of this case, Grants Pass has
dramatically altered the attitude of Chico officials towards unhoused community members; for example,
in early August, the city initiated an eviction sweep without issuing a press release, abandoning its
customary approach.75 It is a tragic indication of what’s to come in cities and towns across the United
States.
In addition to causing immediate distress among the unhoused, this decision will have long-term
consequences for Americans’ well-being and economic mobility. The Covenant House, one of the largest
charities in North and Central America for young victims of homelessness and trafficking, fears that
unhoused youth will increasingly be branded with criminal records that follow them for the rest of their
lives and that the threat of criminalization will prevent victims of human trafficking and sexual abuse
from escaping.76 Indeed, Grants Pass’s ordinances are a counterintuitive expenditure of state funds and
police because they create a tax on homelessness that’s nearly impossible to pay. As the U.S. Interagency
Council on Homelessness articulated, the criminalization of homelessness creates a “revolving door that
circulates individuals experiencing homelessness from the street to the criminal justice system and
back.”77
The Court’s failure to fully consider the harms that Grants Pass’s punishments inflict weakens the
argument that the Amendment should be applied based on “evolving standards of decency.” This
argument has been used to secure access to healthcare in prison, limit solitary confinement, prohibit the
death penalty for people under eighteen and those with intellectual disabilities, and require that “juries
consider people’s individual, often trauma-filled lives before deciding whether to send them to death
row.”78 The Court’s ruling puts all of these protections at risk.
There is a glimmer of hope. In her powerful dissent, Justice Sotomayor encouraged future
claimants considering the constitutionality of similar laws to apply the Fourth Amendment or the Due
Process Clause, 79 which Justice Gorsuch expressed interest in.80 These doctrines could potentially restore
homelessness as a status deserving of protection in the eyes of the Court. Regardless, people must
dismantle false stereotypes about homelessness and the barriers we erect to hide it from view. Cities must
take action to provide more people with a place to sleep.

IV. CONCLUSION
As city leaders throughout the U.S. struggled to address rising homelessness, they came to the
Supreme Court with a gaping wound and a band-aid solution. Instead of acknowledging the wound, the
Court pushed the bandaid down with the force of the Constitution. Justice Sotomayor writes in her dissent
that upholding the City of Grants Pass’ laws presents the unhoused “with an impossible choice: Either

74
Matt Wreden, “Plaintiffs File Objection to Chico’s Efforts to Overturn Warren Settlement,” Action News Now,
September 26, 2024, https://www.actionnewsnow.com/news/plaintiffs-file-objection-to-chicos-efforts-to-overturn-
warren-settlement/article_bdcf7608-7c40-11ef-87cb-b31623cef2e7.html.
75
Leslie Layton, “Plaintiffs Respond to City As It Tries to Extricate Itself from Warren,” ChicoSol, August 7, 2024,
https://chicosol.org/2024/08/07/plaintiffs-respond-city-tries-extricate-warren/.
76
“Overview of the Johnson v. Grants Pass Ruling,” Covenant House, June 28, 2024,
https://www.covenanthouse.org/news/johnson-v-grants-pass-decision.
77
City of Grants Pass, 603 U.S. ___, at 6.
78
Chammah, Heffernan, and Schwartzapfel, “This Supreme Court Case.”
79
City of Grants Pass, 603 U.S. ___ (Sotomayor, J., dissenting), at 28–29.
80
City of Grants Pass v. Johnson, Docket No. 23–175, 603 U.S. ___ (U.S. Supreme Court, Apr. 22, 2024, Oral
Argument at 02:02:38–02:03:19).
 106

stay awake or be arrested.”81 Indeed, the majority treats homelessness as a political matter that the
“democratic process” should resolve,82 not a crisis shattering Americans’ ability to meet their basic needs,
let alone participate in that process. In this way, the Court denies its duty to ensure the Bill of Rights
includes “the most vulnerable among us,”83 particularly when “doing so is uncomfortable or unpopular.”84
As the tragic consequences of City of Grants Pass v. Johnson are felt nationwide, municipal leaders and
Americans must look beyond bandaids to address this wound. They must look beyond the view of six
justices and boldly choose to treat the unhoused as who they are: people.

81
City of Grants Pass, 603 U.S. ___ (Sotomayor, J., dissenting), at 2.
82
City of Grants Pass, 603 U.S. ___ , at 10.
83
City of Grants Pass, 603 U.S. ___ (Sotomayor, J., dissenting), at 30.
84
City of Grants Pass, 603 U.S. ___ (Sotomayor, J., dissenting), at 2.
 107

THE VICIOUS CIRCLE OF POVERTY AND INCARCERATION

Ria Sodhi

I. INTRODUCTION
The US criminal justice system houses nearly 2 million people in 1,566 state prisons, 102 federal
prisons, 2,850 local jails, 1,510 juvenile correctional facilities, 186 immigration detention facilities, 82
Indian country jails, military prisons, civil commitment centers, and state psychiatric hospitals.1 Mass
incarceration in the US keeps increasing at ungodly rates. The issue with the system is that it is no longer
used for its purpose:to lock up those who commit crimes. Mass incarceration now reflects the system's
complexity, arising from a range of factors and components that have made it a symptom rather than a
cause. This paper argues that mass incarceration is a symptom of poverty and that, despite laws enacted to
support those affected, they fail to endure due to the criminal justice system's vicious cycle. We are now
using the system not to keep communities safe but to extract money from those who don't have those
financial resources. This leads them to take dire actions just to take care of themselves and their families.
Even if those formerly incarcerated make it out and have reformed, they face a lot of hardship and
prejudice.

II. FINANCIAL BURDEN OF THE CRIMINAL JUSTICE SYSTEM

The American criminal justice system is rife with fees designed to shift the burden of paying for
lawbreaking from the government to those who are accused and found guilty. The vast majority of the
millions of Americans found guilty of felonies and misdemeanors each year face financial penalties from
the courts. Nowadays, nearly every step of the criminal justice system comes with a cost. The estimated
10 million persons who have dealt with the criminal justice system are in debt to the tune of more than
$50 billion.2 Additional expenses have become increasingly prevalent over the past few decades,
including those for police transport, case filing, felony surcharges, electronic monitoring, drug testing,
and sex offender registration. User fees are designed to generate revenue, unlike fines, which serve to
punish, and restitution, which aims to compensate crime victims for their losses. Due in part to the
expansion of the criminal justice system, fees and debts are rising.3 With 2.2 million individuals
incarcerated, courts and all other pertinent organizations have grown as well. The incarceration rate in the
United States increased dramatically during the 1970s, far exceeding that of any other country on Earth.4
In the past 20 years, the number of inmates in the U.S. has increased by around 1.1 million, nearly
tripling. This sharp rise reflects deeper systemic issues contributing to mass incarceration.
More than $80 billion is spent on corrections each year, which is roughly equal to the budget for
the federal Department of Education.5 According to a recent study by the Center on Budget and Policy
Priorities, spending on incarceration is currently third in most states, after education and health care.
Unsettlingly, 11 states actually diverted more general money to the criminal justice system than to higher
education in 2013.6

III. RACIAL DISPARITIES IN INCARCERATION

The effects of incarceration are especially noticeable in Latino and African American
communities, whose members are overrepresented in jails nationwide. The discrepancy is a result of a
wide range of interrelated issues, including policing strategies that focus law enforcement efforts on low-
income, minority communities and the socioeconomic disadvantages that those communities' citizens

1
Prison Policy Initiative. (2022). Mass incarceration: The whole pie 2022. Prison Policy Initiative. Retrieved from
https://www.prisonpolicy.org/reports/pie2022.html
2
“Charging Inmates Perpetuates Mass Incarceration,” Brennan Center for Justice, Lauren-Brooke Eisen,1
3
Eisen,1
4
Eisen,2
5
Eisen,3
6
Eisen,3
 108

face.7 In addition, disproportionately more black men are held pending trial due to their inability to pay
bail money. Despite having bail amounts comparable to those established for white people, black men
seem to be disadvantaged. Due to their greater incarceration rates, they are more likely to be unemployed
or in debt, making it harder for them to post bail.8
Furthermore, these differences continue during sentencing. Many prisons, courts, and other
criminal justice organizations demand fees for the services they offer. Additionally, the majority of jails
have agreements with independent phone and video conferencing providers that charge inmates more than
the general public.9 Although they may seem insignificant individually, fees add up. Some customers
have been forced to pay penalties and fees totaling thousands of dollars.10 Even when authorities provide
payment arrangements, they frequently demand additional fees and surcharges. The financial outlook for
many people leaving jail is rather gloomy when you factor in child support payments, credit card debt,
rent, and other living expenses that can build while you're behind bars—often with late fees or
compounded interest added on. Additionally, charges could keep piling up even after release. If found
guilty, a person may be required to pay restitution. If placed on probation or required to participate in
court-ordered programming or treatment, they may additionally be required to pay supervision fees on top
of the programming costs.11 While they recently did away with this, in NY state, incarcerated people had
to pay a supervision fee of $35 dollars per month to be on parole (assuming parole was offered).12 Once
their parole was up for review, these payments' consistency was considered. If there was inconsistency,
their parole could be extended for a minimum of 2 years. On top of that, there were a variety of barriers
already to being on parole, such as curfews, technical violations, and difficulty finding employment.13
Many people find it impossible to make these payments because those who spend more than a few days in
jail, who frequently have low-paying jobs, to begin with, run the risk of losing their jobs and may have a
very difficult time finding new ones, especially if they have supervision and programming responsibilities
that interfere with the workday. This makes them more likely to end up behind bars again.

IV. THE CYCLE OF POVERTY AND INCARCERATION

Latino and African American communities are disproportionately affected by the criminal justice
system, as are individuals with prior misdemeanor convictions. Those who have been incarcerated face
significant challenges when reintegrating into society. A large number of formerly incarcerated
individuals struggle to secure stable, well-paying jobs, and when they encounter legal trouble again—
such as an arrest and the requirement to pay bail—they are often at a disadvantage. Unable to afford bail,
many end up incarcerated again, even if they haven’t committed a crime. This cycle affects their
livelihoods, disrupts their families, and deepens the barriers to successful reintegration.
Take, for example, the case of Tyrone Tomlin. Though he appeared older than his 53 years, with
grizzled white stubble, Tomlin’s criminal record reflected two brief stints in jail during the late 1980s and
mid-1990s for felony convictions related to auto theft and drug sales.14 As a result, he struggled to find
steady employment and was often forced to rely on temporary construction jobs to make ends meet. One
day, Tomlin was with friends at a local store when he bought a soda. The clerk handed him a straw and
placed the soda in a paper bag. After returning to his group, Tomlin was approached by a police officer
who asked him to step aside. The officer questioned him about whether he was carrying anything illegal.
Tomlin, confident there was nothing to hide, replied "no" and even offered to let the officer search him.

7
“Incarceration’s Front Door: The Misuse of Jails in America,” VERA Institute of Justice, Ram Subramanian, et
al.,15
8
“Incarceration’s Front Door: The Misuse of Jails in America,” VERA Institute of Justice, Ram Subramanian, et
al.,15
9
Ram Subramanian, et al.,15
10
Ram Subramanian, et al.,15
11
Ram Subramanian et al.,15
12
Elias Beltran
13
Elias Beltran
14
“The Bail Trap,” New York Times Magazine, Nick Pinto,
 109

Suddenly, Tomlin found himself arrested on charges of possessing drug paraphernalia. When he inquired
about the basis for the arrest, the officer pointed to the straw, claiming that, based on training and
experience, plastic straws were often used to package heroin residue. Tomlin's criminal history—41
previous convictions—was a significant factor in the officer's decision to arrest him. His case was handed
over to a defense attorney, who was presented with a thick file documenting his past offenses and the
arresting officer’s report.15 Given his prior convictions, there was a high likelihood that the judge would
impose bail. The assistant district attorney (A.D.A.) offered Tomlin a plea deal: 30 days in exchange for a
guilty plea. Tomlin refused, prompting the A.D.A. to request bail. The judge set the amount at $1,500—a
sum Tomlin could not afford as he was living paycheck to paycheck. Within hours, he was on a bus to
Rikers Islands.16 Tomlin spent weeks in jail before finally being released. The time spent in custody,
however, had already taken a significant toll on his life. He had lost his job, and his family was once
again caught in the grip of a justice system that seemed stacked against him.17This is just one story out of
hundreds. However, Tomlin’s is a bit unique. Tomlin's determination to resist the accusations was
unusual. Bail serves as a compulsion tactic throughout the criminal justice system, pressuring defendants
to enter guilty pleas when they otherwise would not. Through every hearing, Tomlin maintained his
innocence and that the straw was just quite literally just a straw. Making bail is almost always impossible.
In America, bail has changed through time from being a means of keeping people out of jail to
increasingly serving as a catch-all for those unable to pay it. Unsecured bonds are now extremely rare,
and in most jurisdictions, there are only two options for posting bail: either you post the entire sum
yourself, or you pay a bail bondsman to do it on your behalf.18
Since a trio of Supreme Court rulings from the 1970s and early 1980s, the imprisonment of
impoverished defendants who are unable to pay penalties has been deemed unconstitutional.19 This is a
particularly pernicious variant of this revenue generator. In the first, Williams v. Illinois, a small-time
burglar was imprisoned even after serving his sentence in order to pay a fee. The second case, Tate v.
Short, was Preston Tate, a Texas man fined $425 for a number of moving offenses. Tate was unable to
pay the fine, so the court sentenced him to 85 days in jail, or the time it would take him to pay it off at the
rate of $5 per day. The Equal Protection Clause of the 14th Amendment to the Constitution, which
prohibits the government from discriminating on the basis of factors like color or background, was
violated by the punishment, according to the Supreme Court, which heard Tate's case. Tate was
incarcerated "solely because of his indigency,”20 the court decided. Justice Sandra Day O'Connor deemed
it "fundamentally unfair" to send the man to prison for nonpayment without "considering whether
adequate alternative methods of punish[ment]" — like community service or a payment plan — were
available in the majority opinion for an analogous case from 1983, Bearden v. Georgia, in which a man
received probation and a fine after pleading guilty to burglary and theft.21 Anything less would mean
taking away someone's freedom because he happened to be poor. Even so, decades after those judgments
were decided, the practice of locking up nonpayers continues, in part because decisions made by the
Supreme Court are not always followed by the lower courts either because of loopholes or because they
take the ruling as up to interpretation. Additionally, it is still argued that locking up low-income offenders
has proven to be a successful means of earning money. A court is frequently able to obtain money from a
defendant's relatives that might otherwise be impossible to reach by threatening them with
imprisonment.22

15
“The Bail Trap,” New York Times Magazine, Nick Pinto,
16
“The Bail Trap,” New York Times Magazine, Nick Pinto,
17
“The Bail Trap,” New York Times Magazine, Nick Pinto,
18
“The Bail Trap,” Nick Pinto
19
“How Cities Make Money by Fining the Poor,” New York Times Magazine, Matthew Shaer
20
“How Cities Make Money by Fining the Poor,” Matthew Shaer
21
“How Cities Make Money by Fining the Poor,” Matthew Shaer
22
“How Cities Make Money by Fining the Poor,” Matthew Shaer
 110

V. THE ROLE OF MENTAL HEALTH IN INCARCERATION

Poverty is not the only factor in incarceration. Mental Health also plays a big role in the
incarceration system. According to a BJS study released in 2006, inmates with mental illness are more
likely than other inmates to experience homelessness, unemployment, and substance abuse.23 The most
recent information indicates that 83% of jail detainees with mental illnesses did not receive mental health
care after admission.24 A major factor in why people with mental illnesses in jail are more likely to be
kept in solitary confinement, either as a form of punishment for breaching the rules or for their own
protection since they are also more likely to be abused, is the lack of treatment in a chaotic atmosphere.
Not only that, but the conditions in some prisons are very traumatic. Johnny Perez, a formerly
incarcerated man who wrote an opinion piece in the Daily News, explained his time and the living
situation he faced while on Rikers Island at 16. He explained, "on Rikers, violence is the law of the land
— eat or be eaten.”25 There were corrections officers who had allied with some of the prisoners and even
helped them beat up other inmates. You lived in constant fear. This type of emotional trauma can also
lead to formerly incarcerated people returning to the system. These experiences demonstrate how mental
health challenges, compounded by poverty, create a cycle of incarceration that is difficult to break.
Without access to adequate mental health care both during and after incarceration, individuals are left
vulnerable to reoffending, perpetuating the cycle of poverty and imprisonment. Addressing mental health
alongside poverty is crucial to disrupting this cycle and reducing recidivism rates.

VI. CONCLUSION
In conclusion, while numerous factors contribute to the high rates of mass incarceration, poverty
stands out as a central and often overlooked component. The criminal justice system, as it stands today,
disproportionately affects the most vulnerable populations, especially those already struggling with
economic hardship. Although some reforms have been introduced—such as efforts to reduce mandatory
sentencing and address cash bail—true and lasting change will require a comprehensive overhaul of the
entire system. Simply implementing isolated solutions will not solve the problem, as these measures often
have unintended consequences. For instance, while it is illegal to imprison indigent defendants simply for
their inability to pay fines, the widespread practice of imposing financial penalties on the poor continues
to trap them in a cycle of debt and incarceration. The system has become one that extorts money from
those who can least afford it, leading many to reoffend or fail to meet the conditions of parole, which
sends them back into the system.
To break this cycle, a broader approach is necessary. First, we must invest in alternatives to
incarceration, particularly for nonviolent offenders. Restorative justice programs and community-based
interventions have been shown to be effective at reducing recidivism and giving individuals the support
they need to reintegrate into society. Additionally, reforming the cash bail system is essential to ensure
that pretrial detention is not determined by a person's ability to pay but rather by their risk to public
safety.26
We must also address the root causes of criminal behavior—poverty, lack of education, and lack
of access to mental health services—by shifting focus from punishment to rehabilitation. Programs that
provide job training, education, and mental health support in prisons have proven to reduce reoffending
rates and help formerly incarcerated individuals reintegrate into society. These approaches not only
benefit the individual but also reduce the burden on the criminal justice system in the long term.
If we are to create a more just and equitable society, the United States must take bold action. The
criminal justice system cannot continue to operate as it has, perpetuating cycles of poverty and
incarceration. By rethinking how we approach justice—prioritizing rehabilitation, addressing systemic

23
VERA Institute of Justice, Ram Subramanian, et al.,13
24
VERA Institute of Justice, Ram Subramanian, et al.,13
25
“Violence is the Law of the Land: The Truly Corrosive Problem of Rikers,” New York Daily News, Johnny Perez
26
“The Bail Trap,” Nick Pinto
 111

inequality, and offering second chances—we can build a more humane and effective system that truly
serves all members of society, not just the privileged few.
 112

THE ROLE OF THE U.S. DOMESTIC COURTS IN THE ENFORCEMENT OF

INTERNATIONAL TREATIES
Timothy Son

I. INTRODUCTION
What is a “treaty?” When is a treaty enforceable in the U.S. domestic courts? How should the
treaties be interpreted? As much as the international law itself, the U.S. jurisprudence on international
treaties has been ambiguous, if not, narrowly defined. The U.S. Constitution lays the actors responsible,
including the judiciary authority over the treaties, however, it leaves a significant ambiguity in the
enforcement of treaties in the U.S. domestic courts. Article II of the U.S. Constitution grants the President
the treaty-making power with the consent and advice requirement from the Senate.1 Article VI, known as
the Supremacy Clause, states that all treaties “shall be the supreme Law of the Land; and the Judges in
every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.”2 Finally, Article III, Section 2, Clause 1 provides that the judicial power will “extend to
all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties
made, or which shall be made, under their Authority.”3 This paper will argue that the Supreme Court’s
role in international treaties—specifically in constitutionality, interpretation, and private enforcement of
treaties—has been rarely standardized. Recent court cases flipped decades-long precedents on the basic
assumptions of treaty interpretation and made abrupt changes in the authority of the President to make
treaties, the Congress, and private enforcement.
This paper briefly outlines the history of jurisprudence on the international treaties in the U.S.
domestic courts, explains recent relevant cases in the federal courts, and summarizes the role of federal
courts in the enforcement of international treaties in the U.S. Section I describes the judicial history of
international treaties in the U.S. domestic courts, examining it under the perspective of three subsection of
ideas relevant to the enforcement of international treaties: A. Treaty Making Power and Constitutionality,
B. Construction and Interpretation of Treaties, and C. Private Enforcement. For each subsection, this
paper will analyze how the judicial rule has been fluctuating. Section II scrutinizes the recent cases
involving international treaties, scrutinizing the notable portions where the Supreme Court applies the
past precedents and exemplifies the jurisprudence of international treaties.

II. THE HISTORY OF TREATY JURISPRUDENCE

What is a treaty? The Supreme Court has rarely provided this definition, rendering the Court to
instead bring inspiration from sources outside of the judiciary to support its description. Most notably, the
Vienna Convention on the Laws of Treaties of 1969 (“Vienna Convention”), defines it as, “an
international agreement concluded between States in written form and governed by international law.”4
The United States is a high contract party to the Convention, meaning that the U.S. federal government
has signed the treaty. However, the treaty was never ratified by the Senate, and the Convention does not
give binding legal obligations to the United States. Nonetheless, the U.S. domestic courts have applied
several propositions of the convention in its holding, and the convention is generally received as
customary international law.5 In the U.S. specifically, a treaty must be ratified by the Senate, as per
Article II of the Constitution. However, the President can initiate and bind to an international agreement

1
U.S. Constitution, art. 2, sec. 2.
2
U.S. Constitution, art. 6.
3
U.S. Constitution, art. 3, sec. 2, cl. 1.
4
“The Vienna Convention on the Laws of Treaties,” May 23, 1969, the United Nations,
https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf.
5
Bradley , Curtis A., Sarah H. Cleveland , and Edward T. Swaine. Restatement of the Law Fourth, the foreign
relations law of the United States. 4th.ed. St. Paul, MN: American Law Institute Publishers, 2018.
 113

without the approval from the Senate, in which case it is generally referred to as “executive agreements,”
as opposed to “Article II treaties.”6

i. Treaty Making Power and Constitutionality

Who can make treaties? Was the treaty created with proper authority delegated to the executive
agency? This set of questions is pertinent to the enforcement of treaties due to the possibility of judicial
interference when treaties are conceived and implemented.7 Although the U.S. courts have generally
resisted the urge to extend the judicial review to matters regarding international relations, it is not an
uncommon occurrence that the courts ruled on the constitutionality of the treaties.8 Particularly, executive
agreements, rather than Article II treaties, are subjected to this question more frequently. This trend may
be because treaties following the proper Article II procedure leave little room for questioning its
constitutionality. In contrast, executive agreements require the President to obtain proper authorization
from Congress through prior statute or treaty.9 Therefore, if the prior arrangement between the Congress
and the President is ambiguous, implicit, or if the executive agency has extrapolated in its interpretation,
then the constitutionality question of the treaty arises. In such cases, the Courts indeed can invalidate
treaties on the basis of the Constitution.
The majority of the treaties today are created as Executive Agreement, rather than Article II
treaties.10 This necessarily indicates that the Executive branch relies on the delegation of power from
Congress to create and implement the majority of its international agreements.11 Between 1989 and 2016,
53 percent of the executive agreements had its authorization basis on less than an “express” delegation,
where the Constitutional basis of the treaty included an “authorization to negotiate, but not to conclude an
agreement,” or “no arguable delegation of agreement-making authority.”12 Following this trend, the
Supreme Court has historically favored broad and less specific Congressional power delegation when the
matter dealt with international relations—a trend known as the Historical Gloss.13 Moreover, when the
statute is “silent or ambiguous,” the Court has traditionally followed the Chevron Doctrine and deferred to
the agency’s “reasonable interpretation.”14 Yet, the Court has recently undermined the Executive
agencies’ authority to interpret the prior statute. In West Virginia v. EPA, the Court consolidated the
Major Questions Doctrine, rejecting the Environmental Protection Agency its authority to interpret the
Clean Air Act to create the Clean Power Plan.15 Chief Justice Roberts, describing the Major Questions
Doctrine, stated that in “certain extraordinary cases, both separation of powers principles and a practical
understanding of legislative intent make us ‘reluctant to read into ambiguous statutory text’ the delegation
claimed to be lurking there.”16 In such cases the agency must cite a “clear congressional authorization for
the power it claims.”17 However, Justice Roberts never clarified what constitutes “extraordinary case” or

6
Eichensehr, Kristen and Hathaway, Oona A., Major Questions about International Agreements (July 25, 2023). 172
University of Pennsylvania Law Review 1845 (2024), 1847.
7
Eichenseher and Hathaway, “Major Questions,” 1858.
8
Federal Republic of Germany v. Philipp, 592 U.S. 169, (2021). The Supreme Court indeed has been “selective”
when deciding which international cases to interpret. For example, Chief Justice Roberts, while commenting about
the prior case Banco Nacional De Cuba v. Sabbatino, described the reluctance of the Court: “Hesitant to delve into
this controversy, we instead invoked the act of state doctrine, which prevents United States courts from determining
the validity of the public acts of a foreign sovereign.”
9
Eichenseher and Hathaway, “Major Questions,” 1859.
10
Eichenseher and Hathaway, “Major Questions,” 1858.
11
Eichenseher and Hathaway, “Major Questions,” 1859.
12
Eichenseher and Hathaway, “Major Questions,” 1862.
13
Eichenseher and Hathaway, “Major Questions,” 1878.
14
Eichenseher and Hathaway, “Major Questions,” 1850.
15
West Virginia v. Environmental Protection Agency, 597 U.S. 697, (2022).
16
West Virginia v. Environmental Protection Agency, 597 U.S. 697, (2022).
17
West Virginia v. Environmental Protection Agency, 597 U.S. 697, (2022).
 114

what the “clear congressional authorization” entails.18 Thus, it is wholly possible that the Court can
extend the Major Questions doctrine to the executive agreements dependent on implicit delegation of
power from Congress. Finally, in Loper Bright Enterprises v. Raimondo, the Roberts Court has
effectively overruled the Chevron Doctrine entirely, leaving the question of Executive branch statutory
interpretation vis-a-vis international agreements completely vacated.19

ii. Construction and Interpretation

A construction, or an interpretation rule of international treaties under the U.S. domestic courts
have been vague, dispersed, and even conflictual depending on the jurisdiction. For the majority of U.S.
jurisprudential history, the Supreme Court has failed to provide a clear and concise interpretation rule of
treaties.20 However, there existed a set of principles that were known to guide the Supreme Court’s
construction of international treaties. In Tucker v. Alexandroff, the Court considered treaties with the
“Good Faith Principle,” where the Court looks to the apparent purpose and context of the treaties to
interpret the ordinary meaning of the text, for the mutual protection of parties involved in the treaties.21
The Court establishes, “that the rights of the parties must be determined by the treaty, but that this
particular convention being operative upon both powers and intended for their mutual protection, should
be interpreted in a spirit of uberrima fides, and in a manner to carry out its manifest purpose.”22
Furthermore, “Treaties of every kind . . . are to receive a fair and liberal interpretation according to the
intention of the contracting parties, and to be kept with the most scrupulous good faith. Their meaning is
to be ascertained by the same rules of construction and course of reasoning which we apply to the
interpretation of private contracts.”23 This “Good Faith” Principle seems to have been the prevalent norm
for a long time, as it was described in a 1934 University of Chicago Law Review article as having “hardly
any exceptions to this principle.”24 Additionally, the Alexandroff Court invoked what is known as the
liberal construction when interpreting private treaties.25 The Court added, “[treaties] should be interpreted
in that broad and liberal spirit which is calculated to make for the existence of a perpetual amity, so far as
it can be done without the sacrifice of individual rights or those principles of personal liberty which lie at
the foundation of our jurisprudence.”26 Similarly, in Shanks v. Dupont, Justice Story describes the Liberal
Construction as: “If the treaty admits of two interpretations, and one is limited, and the other liberal; one
which will further, and the other exclude private rights; why should not the liberal exposition be
adopted.”27 Unlike the Good Faith Principle, the liberal construction held a contentious position in the
Supreme Court jurisprudence, as the Court never fully described what it means to apply a “liberal”
construction.28 The principle was often mentioned in dicta, rather than a binding precedent, and the Court
has been inconsistently applying the principle.29
Today, courts frequently cite the Restatement of the Foreign Relations Law of the United States
(“Restatement”), a series of influential summary documents outlining the nature and position of U.S.
foreign relations laws. Part III, Section 306 lays the principles that guide the U.S. Courts when
interpreting international treaties, which categorizes six different interpretation rules.30 First, the good

18
Eichenseher and Hathaway, “Major Questions,” 1854-1855.
19
Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, (2024).
20
Lenoir, James J. “Treaties and the Supreme Court.” The University of Chicago Law Review 1, no. 4 (1934): 602–
22. https://doi.org/10.2307/1597002.
21
Tucker v. Alexandroff, 183 U.S. 424, (1902).
22
Tucker v. Alexandroff, 183 U.S. 424, (1902).
23
Tucker v. Alexandroff, 183 U.S. 424, (1902).
24
Lenoir, “Treaties and the Supreme Court,” 617.
25
Tucker v. Alexandroff, 183 U.S. 424, (1902).
26
Tucker v. Alexandroff, 183 U.S. 424, (1902).
27
Shanks v. Dupont, 28 U.S. 242, (1830).
28
Lenoir, “Treaties and the Supreme Court,” 621.
29
Lenoir, “Treaties and the Supreme Court,” 621.
30
Bradley, Cleveland, and Swaine, “Restatement.”
 115

faith principle, considering the meaning, objective, and purpose of the treaty. Second, the context of the
purpose of the treaty, including any other agreements and any instruments made by the compromising
parties. Third, any subsequent agreements, practices, or rules of international law. Fourth, a special
meaning given to a particular term of the treaty. Fifth, the negotiating history and circumstances of the
treaty. Sixth, the weight given to the Executive branch’s interpretation.31

iii. Private Enforcement

A treaty can be characterized as a “private” treaty when it confers a private right, or marginally
relates to the private rights of citizens or related parties.32 A treaty that, in face, does not concern private
rights however may still confer private rights.33 For the majority of the Supreme Court’s history, a private
treaty was presumed to be self-executing, meaning that it did not require additional legislative statutes to
establish private rights in U.S. domestic courts. Moreover, courts prior to the mid-twentieth century ruled
that a self-executing private treaty almost inherently conferred the private right of action, meaning that
individuals can actively invoke the private rights conferred by the treaty.34 Therefore, the majority of the
private treaties were considered self-executing and conferred private right of action.
However, post-World War II courts increasingly viewed this interpretation skeptically, slowly
diminishing the presumption. Between the period of mid 20th century through the year 2008, the
distinction between private treaties and non-private treaties became meaningful, as it dictated how the
court ruled on its private enforcement rights. Nonetheless, in 2008, the judicial trend culminated in
Medellin v. Texas, when the Supreme Court wholly proposed in the dicta that: “Even when treaties are
self-executing in the sense that they create federal law, the background presumption is that international
agreements, even those directly benefiting private persons, generally do not create private rights or
provide for a private cause of action in domestic courts.”35 Despite this statement appearing in dicta,
Medellin heavily influenced the future decisions of treaties in federal courts. Currently, regardless of the
private or non-private treaty divide, any international treaty is presumed to provide no private right of
action.36

II. RECENT CASES

The following two subsections present recent Supreme Court cases, Bond v. United States and
Water Splash Inc. v. Menon, each exemplifying the issue of constitutionality and the construction
(interpretation), respectively. In each case analysis, an explanation will be presented of how the Court
applied or exhibited signs of its prior jurisprudence. Private Rights are not discussed in this section, due to
the lack of recent Supreme Court rulings on the matter. Courts have applied the Medellin decision, and
since 2008, no significant change occurred in such a trend.

i. Treaty Making Power and Constitutionality

The Chemical Weapons Convention (“CWC”) was ratified by the United States in 1997,
obligating the parties to prohibit the development, production, acquisition, stockpiling, retention, transfer
or use of chemical weapons.37 Subsequently, Congress enacted the Chemical Weapons Convention
Implementation Act of 1998, making it a federal crime to use or possess any chemical weapons.38 In

31
Bradley , Cleveland , and Swaine, “Restatement.”
32
Oona A. Hathaway; Sabria McElroy; Sara Aronchick Solow, "International Law at Home:
Enforcing Treaties in U.S. Courts," Yale Journal of International Law 37, no. 1 (Winter 2012): 56.
33
Hathaway, McElory, and Solow, “International Law at Home,” 56.
34
Hathaway, McElory, and Solow, “International Law at Home,” 57.
35
Medellin v. Texas, 552 U.S. 491, (2008).
36
Hathaway, McElory, and Solow, “International Law at Home,” 57.
37
“The Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons
and on their Destruction,” signature opened January 13, 1993, Organization for the Prohibition of Chemical
Weapons (OPCW), https://www.opcw.org/sites/default/files/documents/CWC/CWC_en.pdf.
38
Chemical Weapons Convention Implementation Act, 18 U.S. Code, § 229(a).
 116

2006, Carol Anne Bond, a microbiologist and the petitioner of this case, found that her close friend
Myrlina Haynes was pregnant and that the child’s father was Bond’s husband.39 In a retaliatory manner,
Bond created a mildly toxic chemical compound and dispersed it throughout Haynes’ properties, to give
Haynes uncomfortable skin rashes. Haynes only suffered minor chemical burns on her thumb, and Bond
was later charged with mail theft (which occurred during the dispersion of the chemical), and notably, the
violation of 18 U.S. Code Section 229(a), which was amended by the Chemical Weapons Convention
Implementation Act to federally criminalize the usage of chemical weapons. Bond raised a Tenth
Amendment claim on her charges, arguing that Congress and the federal government overstepped its
enumerated boundaries into the state government’s police power of local crime prosecution. The Third
Circuit Court of Appeals denied this claim on the basis of Missouri v. Holland, which stated, “If the treaty
is valid there can be no dispute about the validity of the statute that implements it as a necessary and
proper means to execute the powers of the Government.”40 The unanimous Supreme Court in Bond v.
United States ruled in favor of Bond, holding that, “Absent a clear statement of that purpose, we will not
presume Congress to have authorized such a stark intrusion into traditional state authority.”41
Unlike much of the issue discussed in Section I of this paper, which dealt with the treaty-making
power from the perspective of Executive statutory interpretation and Congressional delegations, Bond
case primarily concerns the scope of Congress’ own treaty-making power. The Bond court seems to limit
the broad powers previously granted by Missouri v. Holland, and sets the boundaries of treaty-making
power at the point when the Federal government crosses over the State and local governments’ powers.42
However, Bond decision arguably is more narrowly defined than how it looks superficially. Bond decision
does not outright overrule every situation when the Federal government seeks to enforce an international
agreement at the local level. After all, Chief Justice Roberts reassures that, “The Federal Government
undoubtedly has a substantial interest in enforcing criminal laws against assassination, terrorism, and acts
with the potential to cause mass suffering. Those crimes have not traditionally been left predominantly to
the States, and nothing we have said here will disrupt the Government’s authority to prosecute such
offenses.”43 In coming to this conclusion, the Court scrutinized 1) Congress’ intent, and 2) the use of the
term “Chemical Weapons” in the CWC and 18 U.S. Code Section 229(a).44 In summary, the Court found
that the CWC, which was created in the context of mass chemical weapons, could not have rendered the
Congress to cover the statute to the layperson’s understanding of “using a chemical” to inflict a minor
harm.45 Nonetheless, questions persist, as it is less clear whether the Roberts Court will, once again, set
boundaries to Congress and the Federal Government’s treaty-making powers when new cases involving
other types of international agreements arise to the Supreme Court.

ii. Construction and Interpretation

The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and
Commercial Matters (“Hague Service Convention”) simplifies the process of servicing judicial
documents across borders.46 The respondent Menon was sued by her former employer Water Splash Inc.
on the claims of unfair competition, conversion, and tortious interference with business relations—for

39
Bond v. United States, 572 U.S. 844, (2014).
40
Missouri v. Holland, 252 U.S. 416, (1920).
41
Bond v. United States, 572 U.S. 844, (2014).
42
Oona A. Hathaway, Spencer Amdur, Celia Choy, and Samir Deger-Sen, The Treaty Power: Its History, Scope and
Limits, 98 Cornell L. Rev. 239 (2013), 3.
43
Bond v. United States, 572 U.S. 844, (2014).
44
Bond v. United States, 572 U.S. 844, (2014).
45
Bond v. United States, 572 U.S. 844, (2014).
46
“The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial
Matters,” November 15, 1965, Hague Conference on Private International Law,
https://www.hcch.net/en/instruments/conventions/full-text/?cid=17.
 117

working with Water Splash’s competitor while being employed by Water Splash.47 The plaintiff received
permission to service the suit by mail, as Menon was residing in Canada at the time, and after Menon
failed to respond, the trial court made a default judgment in favor of Water Splash. Menon appealed the
case, arguing that the service by mail did not comply with the requirements of the Hague Service
Convention. The Texas Court of Appeals ruled in favor of Menon, whereas a number of other district
courts around the nation made less than unified rulings on whether the service by mail comports with the
Hague Service Convention.48 In Water Splash v. Menon, the Supreme Court held in favor of Water
Splash, clarifying that the Hague Convention does not prohibit the service by mail.49
Justice Alito, writing for the unanimous court, utilized almost all the interpretive tools in the
Restatement to scrutinize the Hague Convention. The issue at hand was whether the phrase “send judicial
documents” in Section 10(a) purports to “sending documents for the purposes of service.”50 First, the
context of the term used in the Convention, including the term used in other parts of the Convention and
the French translation. Article 1 of the Convention lays that the scope of the convention “shall apply in all
cases. . .for service abroad.”51 The structure of the Convention also compels that Section 10 cannot be
read to exclude mailing for the purposes of service.52 Moreover, the Court even analyzes the French
definition of the word “send” and asserts that it “has been consistently interpreted as meaning service or
notice.”53 Second, exterior documents, including the treaty drafting history, were considered, as the Court
establishes that the relevant documents consistently state the permissibility of the service by mail.54 Third,
the interpretation of the Executive branch, including the report from the Department of State, supporting
the Court’s argument.55 Lastly, the views of the other parties to the treaty, including the foreign court
interpretations, the signatories, and the Special Commission which comprises several member states
provide that the Convention does not prohibit service by mail.56

III. CONCLUSION
This paper has analyzed the role of U.S. domestic courts in the enforcement of international
treaties. In large, the U.S. courts answer the following three questions in matters regarding international
agreements. First, was the treaty made and implemented with proper authorization, acting within the
constitutional boundaries of Congress or the Federal government? Second, what construction and
interpretation should be used to scrutinize the texts of the international treaty? Third, when do private
treaties confer a private right of action? This paper argued that the jurisprudence of the Supreme Court
has failed to provide an overarching rule that answers all three questions satisfactorily. The first question
is a perpetual issue, as the public and legal scholars wait for the Supreme Court to reveal whether a new
interpretive regime that replaces the Major Questions Doctrine or the recently overturned Chevron

47
Water Splash, Inc. v. Menon, 581 U.S. 271, (2017).
48
Water Splash, Inc. v. Menon, 581 U.S. 271, (2017).
49
Water Splash, Inc. v. Menon, 581 U.S. 271, (2017).
50
“The Convention on the Service,”§10(a).
51
“The Convention on the Service.”
52
Bradley , Cleveland , and Swaine, “Restatement.” Subsection 2 provides that the context and purpose of the
treaty, including its preamble and annexes, should be considered.
53
“Restatement.” Comment f states that the United States has largely accepted the Article 33 of the Vienna
Convention as a matter of practice. Article 33 states that, for treaties authenticated in multiple languages, the text in
each language is equally authoritative.
54
“Restatement.” Subsection 5 provides that, supplementary means of interpretation, including the treaty’s
negotiating history and circumstances of its conclusion may be considered when the meaning of the treaty is
ambiguous.
55
“Restatement.” Subsection 6 provides that U.S. Courts ordinarily give greater weight to an interpretation made by
the executive branch.
56
“Restatement.” Subsection 2(b) states that any instrument made by the treaty’s parties concerning the conclusion
of the treaty can be considered. Subsection 3 lays that any subsequent agreements, practices, or relevant
international law applicable may be considered.
 118

Doctrine will be established. Or conversely, if there will be no such regime, leaving the courts as the sole
authority of statute interpretation. The second question has never been a concrete one, as the courts have
seldom held an interpretation rule, and rather applied numerous factors of consideration when interpreting
a treaty. The last question remains the sole matter where the Supreme Court has set a prominent precedent
that is being applied to almost all cases regarding private treaties. Nevertheless, the Court’s opinion in
Medellin is only a dicta, and there exists no guarantee that the following generation of Courts will
introduce changes. One commonality between the presented three issues is that the Court has made
significant changes in the last two decades—arguably a recent phenomenon. The status of U.S. treaty
jurisprudence, the treaty-making powers of the federal government, and ultimately, the role of the U.S.
domestic courts in the enforcement of treaties is, hence, ever-evolving under the current Supreme Court.
 119

WHEN POWER TRUMPS LAW: HOW SECURITY COUNCIL ELITES UNDERMINE UNITED
NATIONS JUSTICE
Emma Staller

I. INTRODUCTION
In December 2017, former United States President Donald J. Trump announced his decision to
move the United States embassy in Israel from Tel Aviv to Jerusalem, describing it as “a long-overdue
step to advance the peace process and to work towards a lasting agreement.1 The official relocation of the
embassy on May 14, 2018 prompted the State of Palestine to initiate legal proceedings against the United
States before the International Court of Justice (ICJ), alleging violations of the Vienna Convention on
Diplomatic Relations of April 18, 1961.2 This action swiftly and forcefully thrusted the ICJ into the global
spotlight. Palestine has formally asked the Court to rule that the relocation of the U.S. embassy to
Jerusalem violates the Vienna Convention and to issue a mandate requiring the U.S. to fulfill its
obligations to prevent future violations, while ensuring such unlawful actions are not repeated.3 This
brings us to the present moment, marked by a significant impasse of profound implications as the world
watches in anticipation for international judicial bodies, such as ICJ, to resolve the current standstill.
This legal battle unfolds in the context of ongoing tensions in the region, including violence
between Israel and Hamas. Since Hamas, a classified terrorist organization, has taken control of Palestine
in 2006, Israel has faced an ongoing slew of attacks from the neighboring regime. As recently as October
7, 2023, Hamas launched a deadly attack on Israel, prompting the Israel Defense Forces (IDF) to engage
in aerial campaigns and ground operations within the Gaza Strip. Efforts to free the more than one
hundred remaining Israeli and foreign hostages taken by Hamas have been largely unsuccessful, with
their locations and health statuses remaining unknown. Almost two million Gazans—over 85 percent of
the population—have fled their homes since October 20234. Recent casualty estimates from the Hamas-
run Gazan Health Ministry place the death toll in Gaza at around 42,000, although such numbers are
challenging to verify due to limited international access to the strip and credibility of the source.5 While
these developments are serious and warrant attention, this article will focus on a different aspect of the
conflict. While acknowledging the ongoing situation, the legal altercation I will discuss predates these
recent events.
Palestine seeks a declaration from the Court stating that the U.S. relocation of its embassy to
Jerusalem breaches the Vienna Convention. Furthermore, Palestine requests that the Court order the
United States to withdraw its diplomatic mission from Jerusalem and adhere to its international
obligations under the Convention.6 Lastly, the application urges the Court to mandate that the United
States take necessary steps to comply with its obligations, avoid any future violations, and provide
guarantees against the recurrence of such unlawful conduct. However, the United States' complex
relationship with the ICJ raises critical questions about the effectiveness of international law. While the
U.S. has engaged actively with the Court, its historical reluctance to accept adverse rulings undermines
the ICJ's authority and raises doubts about the commitment of powerful nations to uphold international
norms. Thus, what genuine impact can the ICJ have in situations where key players, like the U.S., do not

1
Underwood, Alexia. 2018. “US Jerusalem embassy: the controversial move, explained.” Vox.
https://www.vox.com/2018/5/14/17340798/jerusalem-embassy-israel-palestinians-us-trump.
2
The International Court of Justice. 2018. “Reports of Judgments Advisory Opinions: Relocation of the United
States Embassy to Jerusalem (Palestine v. United States),” I.C.J. Reports 2018, p. 708. https://www.icj-
cij.org/sites/default/files/case-related/176/176-20181115-ORD-01-00-EN.pdf.
3
The International Court of Justice, supra note 2, at 708.
4
Council on Foreign Relations: Center for Preventive Action. n.d. “Israeli-Palestinian Conflict | Global Conflict
Tracker.” Council on Foreign Relations. Accessed October 17, 2024. https://www.cfr.org/global-conflict-
tracker/conflict/israeli-palestinian-conflict.
5
Council on Foreign Relations.
6
The International Court of Justice, 708.
 120

adhere to its outcomes? Furthermore, we must consider at what point the actions of the United States, in
the pursuit of its interests, veer into the realm of tyranny, challenging the principles of justice and
accountability on a global scale.

II. FROM PROMISED LAND TO POLARIZED TERRITORY

Why is the United States' decision to move its embassy from Tel Aviv to Jerusalem so
controversial? This action by former President Trump thrust him into the center of a long-standing
geopolitical struggle over the holy city of Jerusalem.7 Before 1948, after the defeat of the Ottoman
Empire and the end of World War I, Britain assumed control over the region known as Palestine, which
was predominantly inhabited by Arabs, with a minority of Jews.8 However, between the 1920s and 1940s,
the Jewish population in Palestine increased significantly due to an influx of individuals fleeing the
Holocaust and the atrocities committed by the Nazis in Europe. This dramatic rise in the Jewish
population heightened tensions with the existing Arab majority in the region. The situation escalated
further when the international community tasked the UK with establishing a national homeland for the
Jewish people in Palestine. In 1947, the United Nations adopted Resolution 181, known as the Partition
Plan, which proposed dividing Palestine into separate Jewish and Arab states, with Jerusalem designated
as an international city.9
Jerusalem is not only Israel's capital but also the spiritual heart of the Jewish people, with
historical and religious sites like the Western Wall, which is the holiest site for Jewish prayer. While
Israel's government and parliament are located in West Jerusalem, which it has controlled since 1949, the
city’s eastern part—seized during the 1967 Six-Day War—remains at the center of dispute.10 Israel has
long maintained that Jerusalem, including East Jerusalem, is its undivided capital, a position supported by
the U.S. under the Trump administration. The Israeli government, particularly under Prime Minister
Benjamin Netanyahu, has remained firm in its stance that Jerusalem must remain Israel's undivided. The
decision to officially recognize Jerusalem as the capital and move the United States embassy here is a
fulfillment of a longstanding promise, reinforcing Israel’s sovereignty over the entire city. On the other
hand, international opposition, including Palestinian claims to East Jerusalem as the capital of a future
state, continues to challenge this stance. The U.S. recognition of Jerusalem as Israel's capital, and the
subsequent embassy move, has deepened tensions, as it aligns the U.S. with Israeli claims to the entire
city while undermining Palestinian aspirations for a two-state solution.

III. THE INTERNATIONAL COURT OF JUSTICE: MEDIATOR IN GLOBAL CONFLICTS

The International Court of Justice (ICJ) plays a vital role as the only judicial body capable of
resolving disputes among the 193 UN Member States, fostering global peace and security through lawful
dialogue rather than conflict.11 Established in 1945, the ICJ, often referred to as the "World Court," is one
of the UN's six principal organs based in The Hague, Netherlands. Unlike courts such as the Court of
Justice of the European Union, which national courts can consult, the ICJ can only hear disputes when
requested by one or more UN member states. Composed of 15 judges elected by the UN General
Assembly and Security Council for nine-year terms, these judges serve as independent magistrates, not as
representatives of their home governments, with only one judge of each nationality on the bench at any
time. Cases begin with the submission and exchange of written pleadings detailing each party's factual
and legal arguments, followed by public hearings where agents and counsel present their case to the

7
The International Court of Justice, 708.
8
Council on Foreign Relations.
9
The United Nations. 2024. “What is the International Court of Justice and why does it matter?” UN News.
https://news.un.org/en/story/2024/01/1145392.
10
BBC. 2024. “Israel Gaza war: History of the conflict explained.” BBC. https://www.bbc.com/news/newsbeat-
44124396.
11
The United Nations. 2024. “What is the International Court of Justice and why does it matter?” UN News.
https://news.un.org/en/story/2024/01/1145392.
 121

court.12 After private deliberations, the ICJ delivers its ruling, which can take anywhere from weeks to
several years. Each country involved appoints an agent to plead their case, holding the same
responsibilities as a solicitor in a national court.
The International Court of Justice (ICJ) handles two types of cases: "contentious cases," which
are legal disputes between states, and "advisory proceedings," where UN organs or specialized agencies
seek legal opinions on specific questions . Any UN Member State can bring a case against another
Member State, even if they are not directly in conflict, as long as the matter affects the broader
international community. The ICJ's rulings are final and cannot be appealed. While the court does not
enforce its own decisions, the responsibility falls on the states involved to implement them within their
national jurisdictions. In most cases, states comply with these rulings in line with their international legal
obligations. If a state fails to meet its obligations, the only recourse is the UN Security Council, which can
pass a resolution to enforce the judgment. However, if the case involves one of the five permanent
members of the Security Council (China, France, Russia, the U.S., or the U.K.), they hold veto power
over enforcement actions.13 Nevertheless, the ICJ's decisions are widely regarded as legitimate,
encouraging states to comply rather than risk damaging their international standing.

IV. PALESTINE’S LEGAL CHALLENGE TO THE U.S. EMBASSY MOVE

On September 28th, 2018, the State of Palestine formally instituted proceedings against the
United States of America before the ICJ concerning alleged violations of the Vienna Convention on
Diplomatic Relations of 1961.14 These violations of the Vienna Convention come in the form of the
President of the United States recognizing Jerusalem as the capital of Israel and announcing the relocation
of the American Embassy in Israel from Tel Aviv to Jerusalem. According to Palestine, this relocation
breaches the provision that a diplomatic mission must be established in the receiving state's territory, and
due to Jerusalem's contested status, it argues that the relocation violates international law. In essence, this
implies that under international law, specifically the Vienna Convention on Diplomatic Relations,
embassies must be situated within the internationally recognized territory of the host state.15 Palestine
contends that Jerusalem's status is contested by various international actors, and therefore, the relocation
of the U.S. embassy to Jerusalem constitutes a violation of these legal principles. Palestine is invoking
Article I of the Optional Protocol to the Vienna Convention, which mandates the settlement of disputes by
the ICJ.16 Palestine formally requests for the Court to declare that the U.S. violated the Vienna
Convention and to order the U.S. to withdraw the embassy from Jerusalem, cease any future violations,
and guarantee non-repetition of such actions.
On November 2, 2018, the United States communicated its rebuttal petitions to the International
Court of Justice (ICJ) in letter format. In this letter, the U.S. informed the Registry that it would not
participate in any proposed meeting scheduled for November 5, 2018, with the President and
representatives of the parties involved in the dispute, arguing that it is not bound by the Vienna
Convention treaty in its dealings with Palestine.17 The U.S. further noted that Palestine had been aware of
these communications before submitting its application and concluded that it was "manifest that the Court
had no jurisdiction in respect of the Application" and that the case ought to be removed from the list.18By

12
Max-Panck-Institut: World Court Digest. 1986. “World Court Digest.” World Court Digest.
https://www.mpil.de/de/pub/publikationen/archiv/world-court-
digest.cfm?fuseaction_wcd=aktdat&aktdat=dec0102.cfm.
13
United Nations, “What is the International Court of Justice and Why Does It Matter?” 2024.
14
The International Court of Justice, 708.
15
United Nations: "Vienna Convention on the Law of Treaties." United Nations Treaty Series 1155 (1969): 331
16
Vienna Convention on Diplomatic Relations and Optional Protocol on Disputes: Done at Vienna, April 18, 1961.
[Washington] :[For sale by the Supt. of Docs., U.S. Govt. Print. Off.], 1973
17
International Court of Justice. 2018. “Relocation of the United States Embassy to Jerusalem (Palestine v. United
States of America),” Second Press Release: The Court decides that the written pleadings will first be addressed to
the question of jurisdiction and that of the admissibility of the Application.
18
International Court of Justice, “Relocation of the U.S. Embassy to Jerusalem,” 2018.
 122

challenging the ICJ's role in resolving the dispute, the U.S. has the potential to render the case invalid and
halt its progress. Furthermore, if the case were to persist, the U.S.'s refusal to participate in preliminary
procedures suggests that, even if the court were to rule against it, enforcing the decision may be difficult
due to political power dynamics, particularly the U.S.'s veto power in the UN Security Council.
The latest movement in the case "Relocation of the United States Embassy to Jerusalem"
(Palestine v. United States of America) came through a press release issued by the International Court of
Justice (ICJ) on November 15, 2018. The ICJ noted that Palestine had accepted the court's jurisdiction
regarding disputes under the Vienna Convention, whereas the United States had previously declared it
does not recognize such a treaty relationship. As a result, the U.S. did not appoint an agent or participate
in the proceedings, asserting that the ICJ lacked jurisdiction.19 During a meeting on November 5, 2018,
Palestine expressed a preference for the court to hear both jurisdiction and merits together, requesting six
months to prepare its submissions. The court decided that jurisdiction and admissibility issues should be
addressed first, setting deadlines for Palestine to submit its Memorial by May 15, 2019, and for the U.S.
to submit its Counter-Memorial by November 15, 2019.20 This case is ongoing, and as of now, no ruling
has been issued. However, the United States has emphatically asserted its indifference to the proceedings,
openly declaring its refusal to recognize any ruling from the ICJ that does not align with its interests,
effectively undermining the court's authority and the very principles of international law.

V. DISREGARDING INTERNATIONAL LAW: THE U.S. AND ICJ PROCEEDINGS

The United States has a long history of contesting international rulings, particularly when those
decisions challenge its foreign policies. A notable example of this is the case of Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States of America), where the International
Court of Justice (ICJ) ruled in favor of Nicaragua on May 10, 1984. Nicaragua claimed that the U.S. had
supported, both overtly and covertly, a mercenary army known as the contras, with the aim of
overthrowing the Sandinista government. By financing and assisting the contras, the U.S. was, according
to Nicaragua, using armed force in violation of its international obligations under customary international
law, the UN Charter, the OAS Charter, and the 1956 United States-Nicaragua Treaty of Friendship and
Commerce.21
As an immediate step, the ICJ issued an order for provisional measures, requiring the U.S. to
cease any actions restricting access to Nicaraguan ports, including the laying of mines. The Court
emphasized the importance of respecting Nicaragua’s sovereignty and political independence, warning
against any actions violating the principles prohibiting the use of force and non-intervention in domestic
affairs. Although the U.S. contested the Court's jurisdiction and refused to participate in subsequent
proceedings, the ICJ proceeded, ruling that the U.S. was obligated to cease all illegal actions and make
reparations for the damage caused to Nicaragua, with the exact amount to be determined later.22
Despite the ruling, the U.S. continued to support the contras and ignored the ICJ’s decision (Tran
1986). When Nicaragua turned to the UN Security Council to enforce the judgment, the U.S. vetoed the
resolution urging compliance, effectively blocking further action.23 This display of political influence led
Nicaragua to inform the ICJ in September 1991 of its intention to discontinue the case. The U.S.
welcomed this move, and the case was officially removed from the Court’s docket on September 26,
1991. As the world observes the United States' approach to future ICJ proceedings with Palestine, this
case serves as a critical example of how the U.S. views the Court. Despite the ICJ ruling in favor of
Nicaragua, the U.S. blatantly disregarded the decision, treating the Court's judgment as insignificant and

19
International Court of Justice, “Relocation of the U.S. Embassy to Jerusalem,” 2018.
20
International Court of Justice, “Relocation of the U.S. Embassy to Jerusalem,” 2018.
21
International Court of Justice. 1984. “Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America).” Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America). https://www.icj-cij.org/case/70.
22
Berlin, Michael J., “U.S. Vetoes Nicaraguan Resolution,” Washington Post, 1986.
23
Berlin, Michael J., “U.S. Vetoes Nicaraguan Resolution,” Washington Post, 1986.
 123

undermining the authority of international justice. This case has proven pivotal in shaping global
perceptions of the U.S.'s stance on international legal rulings.

VI. ANALYZING THE FUTURE OF INTERNATIONAL COURTS IN A POWER-DRIVEN WORLD

Article 94(2) of the United Nations Charter provides a party in a case with recourse to the
Security Council if the other party fails to fulfill its obligations under a judgment rendered by the
International Court of Justice (ICJ).24 This article also grants the Security Council the authority to make
recommendations or decide on measures to enforce the judgment. Additionally, Article 96 allows the
Security Council to request an advisory opinion from the ICJ on any legal question. However, the
relationship between the Security Council and the ICJ is complicated by the veto power held by the five
permanent members—the U.S., the U.K., Russia, China, and France—limiting the Council’s ability to act
in conflicts involving one of these members or their allies.25 This veto power, established after World War
II, remains a significant check on the effectiveness of international law. The United States, in particular,
has had an uneasy relationship with the ICJ, often criticizing its judgments, such as the court's opinion
declaring Israel's occupation of Palestinian territories illegal. While the ICJ's advisory opinions are not
binding, they carry weight under international law, influencing global perspectives and potentially
weakening support for contentious actions like Israel’s.26
The United Nations has long been called upon to prevent conflicts from escalating into war,
restore peace after armed conflict, and promote lasting stability in societies emerging from such turmoil.
The situation currently unfolding in Jerusalem is no different. At the core of the United Nations' mission
is the promotion of the rule of law at both the national and international levels. Establishing respect for
the rule of law is essential for achieving durable peace after conflict, protecting human rights, and
ensuring sustained economic development. The principle that everyone, from the individual to the state
itself, is accountable to laws that are publicly promulgated, equally enforced, and independently
adjudicated, is foundational to the United Nations' work.
However, a key challenge arises in the inability of the International Court of Justice (ICJ), the
United Nations' judicial arm, to enforce its rulings. So, does the ICJ enforce its decisions? The short
answer is no. If states do not comply with an ICJ judgment, the United Nations Security Council may take
action, but there’s a critical caveat. If a case involves one of the five permanent members of the Security
Council—China, France, Russia, the U.S., or the U.K.—that state holds the power to veto enforcement. In
the case of the United States versus Palestine, this means that the ICJ’s ruling becomes irrelevant. As
evidenced in Nicaragua v. the United States (1984), the United States, holding one of the five permanent
seats on the Security Council, simply ignored the ICJ's decision. Given this reality, reform to the United
Nations' structure is not merely a consideration but a necessity. Without significant change, the ICJ will
remain impotent in its ability to enforce international law and promote justice on the global stage. The
current structure, particularly the Security Council’s veto power, fosters a deadlock in decision-making
that has paralyzed the UN on multiple occasions. While the question of removing permanent seats from
the Security Council has been raised, the more pressing issue lies in how the Security Council interacts
with the ICJ.
The Security Council, with its authority to foster negotiations, impose sanctions, and authorize
the use of force—including peacekeeping missions—must be held accountable for enforcing the rulings
of the ICJ. However, just because a state holds a permanent seat on the Security Council does not give it
24
United Nations Security Council. n.d. “Relations with Other UN Organs | Security Council.” the United Nations.
Accessed October 17, 2024. https://main.un.org/securitycouncil/en/content/repertoire/relations-other-un-
organs#rel4.
25
Murphy, Sean D. 2008. “The United States and the International Court of Justice: Coping with Antinomies.”
Scholarly Commons.
https://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=1902&context=faculty_publications.
26
Singh, Kanishka. 2024. “US criticizes ICJ opinion on Israeli occupation of Palestinian territories.” Reuters.
https://www.reuters.com/world/us-criticizes-icj-opinion-israeli-occupation-palestinian-territories-2024-07-20/.
 124

the right to disregard legal rulings, especially when it should lead by example. A state in such a position
should adhere to ICJ decisions more diligently, setting a precedent for others in the international
community. Thus, regardless of the decision the United States makes in this particular case, it must
recognize the weight of its actions on the global stage. As a permanent member of the Security Council, it
must understand that the world is watching, and the precedent it sets could have lasting consequences for
the future of the ICJ and the credibility of international law.

VII. POST-TRUMP REELECTION IMPLICATIONS

During Donald Trump’s first term in office as President of the United States, he staunchly
supported Israel, overturning years of American foreign policy precedent to do so. When Donald Trump
won the presidential election on November 5th, 2024, Israeli officials were some of the first foreign
leaders to congratulate him on his reelection. Benjamin Netanyahu, the Prime Minister of Israel, posted
on the social media platform X, “Congratulations on history’s greatest comeback! Your historic return to
the White House offers a new beginning for America and a powerful recommitment to the great alliance
between Israel and America.” Netanyahu is one of the many foreign policy leaders who have adopted a
“Trump put” ideology—delaying decisions in anticipation of better terms under a future Trump
administration.
The approach of President Joseph Biden's administration to the Middle East conflict has sparked
widespread confusion within the global community. On one hand, the administration has condemned
Israel for its so-called "over-the-top" and "indiscriminate" bombing of Palestine, while on the other, it
continues to provide Israel with weapons and aid. Donald Trump's anticipated presidential stance on the
Israel-Palestine issue is expected to be far more definitive, leaving little to no room for ambiguity. After
all, it was during Trump’s first term in office that the United States broke away from decades of cautious
diplomacy on the issue and officially recognized Jerusalem as Israel's capital. It is expected that Donald
Trump will maintain a favorable stance toward Israel in this conflict, and it can be assumed that this U.S.
favoritism may influence judicial proceedings at the ICJ regarding the Palestine v. United States case. The
global community can anticipate that any decision by the ICJ unfavorable to the United States and Israel
under President Donald Trump is likely to be disregarded. This conviction is reinforced by the clear
precedents of defiance and unilateralism established during his previous term in office.

VIII. CONCLUSION
The United States' blatant disregard for the International Court of Justice and the United Nations
Security Council, both in past actions and anticipated future behavior, raises pressing questions: are
international courts becoming obsolete? Are the very foundations of international justice being eroded
and undermined by global powers like the United States? The case of Palestine v. United States highlights
the growing crisis within the new world legal order. A system is emerging where legal standards appear to
apply only to the weak, while the powerful set their own rules. The ICJ’s verdict will reverberate far
beyond the borders of Palestine and Israel, reflecting the future role of international courts in a world
where might increasingly triumphs over right.
 125

PRESERVATION OR PROGRESS: THE DRAFT PROGRAM COMMENT ON ACCESSIBLE,

CLIMATE-RESILIENT, AND CONNECTED COMMUNITIES
Jesse Ward

I. INTRODUCTION
Amidst a changing climate and global economy, balancing history and heritage with progress is a
pressing challenge for any country, including the United States. How can the nation take care of its
historic resources without hindering technological advancement? Historic preservation law, the legal
framework that protects valuable historic buildings, objects, structures, and lands, is critical to that
balance, and relies on one federal statute. In 1966, the United States Congress passed the single most
important federal legislation about the past: the National Historic Preservation Actor NHPA. According to
the law, projects by the federal government or that use federal funds and affect historically significant
structures have to undergo review on their level of harm and mitigation efforts.1
Nearly sixty years later, the act still influences how large projects such as infrastructure
developments move forward. In August of 2024, the federal Advisory Council on Historic Preservation
released a “Draft Program Comment on Accessible, Climate-Resilient, and Connected Communities,”
aiming to create an alternative to the NHPA review process for housing, climate-smart buildings, and
climate-friendly transportation projects. This was emphasized as part of an effort to reduce energy use,
improve resilience, and decarbonize transportation.2 Program comments and other alternatives to NHPA
review have been scrutinized in the past. However, this Draft Program Comment has faced significant
challenges and criticisms due to its broad and unprecedented nature. It raises questions about the
intentions behind the NHPA, the role of the ACHP, and how historic preservation law and protecting the
environment can coexist.

II. THE NATIONAL HISTORIC PRESERVATION ACT AND SECTION 106

In the wake of urban renewal and massive change in American cities during the mid-20th century,
Congress decided that there had to be a clear process for preservation of history.3 The sweeping National
Historic Preservation Act (NHPA) passed in 1966 with several notable provisions. It established federal
policy on preservation as well as the National Register of Historic Places.4 Chapter 3023 outlines the
process of creating State Historic Preservation programs and the critical responsibilities of State Historic
Preservation Officers (SHPOs). SHPOs are responsible for long-range preservation planning, conducting
surveys of historic property, nominating properties to the National Register, and advising local
governments on matters of preservation, among other tasks. Importantly, they must consult with Federal
agencies on federal undertakings that may affect historic property, assessing plans to protect, manage, or
mitigate harm.5
At a federal level, a key provision of the NHPA was the creation of the Advisory Council on
Historic Preservation (ACHP). The NHPA defines the Council as an independent agency of the United
States Government that advises the President and Congress on historic preservation. Other duties include
encouraging public interest, education, and participation in preservation and coordinating between all
levels of agencies. A key task is to review preservation-related policies and programs of Federal agencies,

1
“National Historic Preservation Act - Historic Preservation (U.S. National Park Service),” Official Government
Website, National Park Service, November 1, 2023, https://www.nps.gov/subjects/historicpreservation/national-
historic-preservation-act.htm.
2
“Proposed Program Comment on Accessible, Climate-Resilient, and Connected Communities | Advisory Council
on Historic Preservation,” Advisory Council on Historic Preservation, August 8, 2024,
https://www.achp.gov/program_alternatives/program_comment/PCs_2024.
3
“National Historic Preservation Act.”
4
U.S. Congress, “National Historic Preservation Act,” Pub. L. No. 89–665, § 302101, 54 USC (1966),
https://www.law.cornell.edu/uscode/text/54/302101.
5
U.S. Congress, “National Historic Preservation Act,” Pub. L. No. 89–665, § 302303, 54 USC (1966),
https://www.law.cornell.edu/uscode/text/54/302303.
 126

recommending methods to improve the effectiveness, coordination, and consistency of those policies.6 In
many ways, the ACHP serves as a federal body that oversees implementation of the NHPA and promotes
participation and interest in historic preservation in the United States.
Yet, the most well-known and significant part of the NHPA is referred to as Section 106, which
involves consideration of preservation. Similarly to the National Environmental Policy Act, which
encourages federal agencies to consider the environmental impacts of their actions, the NHPA encourages
federal agencies to consider the effects of projects they carry out, approve, or fund on historic properties
or structures. More specifically, Section 106 of the NHPA states that prior to the approval of the
expenditure of any Federal funds on the undertaking or prior to the issuance of any license, the
appropriate head of the federal agency shall take into account any effects on historic property.
Additionally, that agency leader shall afford the ACHP a reasonable opportunity to comment.7
When it is determined that their actions or projects fall under NHPA, agencies are not required to
come to a specific conclusion such as stopping a project. The review process only involves the following
procedural requirements: notifying appropriate consulting parties, gathering information on properties in
the affected area under the National Register, assessing the effects of their undertaking on these resources,
determining “adverse effects,” and resolving these effects by developing alternatives in a legally binding
agreement.8

III. ALTERNATIVES TO SECTION 106

Understandably, Section 106 can get in the way of significant federally funded and initiated
projects. Procedural requirements such as gathering information, allowing for public comments, and
conducting consultation are time-consuming. Some scholars argue the ambiguity of the statute’s scope
and interpretable definition of “undertaking” lead to illegal segmenting of projects to produce less
noticeable impacts.9 The Section 106 process can also poke holes in projects, providing project opponents
with evidence and the opportunity to stall. There have been numerous lawsuits which cite the NHPA and
Section 106, and even when the decision is in the agency’s favor, the suit itself can become an
unnecessary step. An illustrative example of these ideas is found in Save Our Heritage, Inc. v. Federal
Aviation Administration, in which preservationists petitioned the FAA’s permitting of an airline to add
flights without properly considering adverse effects or following Section 106. The petition was ultimately
denied, as the agency had conducted its own studies and found no adverse effects. Judge Boudin’s
majority opinion referenced ACHP regulations on Section 106: “If adverse effects are established, even
more complex steps are entailed. Understandably, agencies are loath to submit to this cumbersome
process…”10
Thanks to a categorical exclusion at the time, the FAA was able to dodge consultation and
Section 106 with its studies. Exclusions are not uncommon: since the ACHP can issue regulations related
to Section 106, it has used this power to create methods for speeding up the process called program
alternatives. The ACHP defines these alternatives as ways for agencies to tailor the Section 106 review
process for a group of undertakings or an entire program that may affect historic properties in order to
improve the efficiency of Section 106 reviews and streamline “routine interactions.”11 They are to be

6
U.S. Congress, “National Historic Preservation Act,” Pub. L. No. 89–665, § 304102, 54 USC (1966),
https://www.law.cornell.edu/uscode/text/54/304102.
7
U.S. Congress, “National Historic Preservation Act,” Pub. L. No. 89–665, § 306108, 54 USC (1966),
https://www.law.cornell.edu/uscode/text/54/306108.
8
“Section 106: National Historic Preservation Act of 1966,” U.S. General Services Administration, accessed
October 15, 2024, https://www.gsa.gov/real-estate/historic-preservation/historic-preservation-policy-
tools/legislation-policy-and-reports/section-106-of-the-national-historic-preservation-act.
9
David A. Lewis, “Identifying and Avoiding Conflicts Between Historic Preservation and the Development of
Renewable Energy,” NYU Environmental Law Journal 22 (February 2015): 302–4.
10
Save Our Heritage, Inc. v. FAA, 269 F.3d 49 (U.S. Court of Appeals for the First Circuit 2001).
11
“Program Alternatives | Advisory Council on Historic Preservation,” Advisory Council on Historic Preservation,
accessed October 16, 2024, https://www.achp.gov/program_alternatives.
 127

considered when an agency will carry out a repeated undertaking, when it is more efficient to group
properties together, or when fitting the review process to specific agencies.12
Of these program alternatives, the most notable to this discussion are Program Comments, which
identify a category of agency undertakings. They allow the ACHP to issue comments in the place of a
case-by-case approach by providing a broad response to expected adverse effects. Importantly, the ACHP
emphasizes in its regulations that this alternative can be created by the ACHP itself or requested by a
specific agency.13 In general, Program Comments include a public participation process, which an agency
is typically responsible for, followed by a formal request, which the ACHP uses to consult with SHPOs or
Tribal Historic Preservation Officers (THPOs). Finally, if the Comment is issued, the agency will publish
a notice in the Federal Register.14 Past examples include a 2010 Comment for evaluating the disposal of
inactive Navy vessels, requested by the U.S. Navy, or a 2012 Comment for altering post-1945 concrete
and steel bridges requested by the Federal Highway Administration.15 These Comments, which can save
agencies tens of millions of dollars each, explain how these agencies are still complying with the NHPA
by identifying and considering effects on historic properties.

IV. PROPOSED PROGRAM COMMENT

On August 8, 2024, the ACHP announced its Draft Program Comment on Accessible, Climate-
Resilient, Connected Communities. The proposed Draft Program Comment is part of an effort to support
President Biden’s Investing in America agenda. It would aid federal agencies in complying with Section
106 of the NHPA, streamlining preservation review for certain projects.16 The government-wide
Comment would affect three major sectors: housing, climate-smart buildings, and climate-friendly
transportation.
When it comes to housing, the Draft Comment mentions the work of the Department of Housing
and Urban Development (HUD), which spends $9 billion per year on dated units, as well as the housing
provided by the Department of Defense and Department of Agriculture.17 In order to streamline the
review of projects related to housing, a multitude of agency activities affecting housing would no longer
require Section 106 review, either after the satisfaction of conditions and requirements, or altogether.
These include most landscaping activities, rehabilitation of much of the exterior built environment, some
interior and exterior renovations, hazardous materials, energy audits, and electrification.18
Climate-smart building practices affected by the NHPA include federal projects to finance zero
emissions building projects, perform energy upgrades in federal buildings, and invest in electrification
and energy upgrades in HUD-assisted housing.19 Similarly to housing, this sector’s work would be
streamlined under this Program Comment by eliminating or easing Section 106 review for several types
of activities related to reducing buildings’ energy use or greenhouse gas emissions. These activities
include typical site work such as landscaping, rehabilitation of non-historic outdoor features, exterior

12
“Program Alternatives.”
13
U.S. Government, “36 CFR § 800, Protection of Historic Properties,” 36 CFR § 800.14 (2004),
https://www.ecfr.gov/current/title-36/part-800/section-800.14.
14
U.S. Government.
15
“Program Comments,” Advisory Council on Historic Preservation, accessed October 15, 2024,
https://www.achp.gov/program_alternatives/program_comments.
16
“ACHP Announces Draft Program Comment on Accessible, Climate-Resilient, Connected Communities,”
Official Government Website, Advisory Council on Historic Preservation, August 8, 2024,
https://www.achp.gov/news/achp-announces-draft-program-comment-accessible-climate-resilient-connected-
communities.
17
“Draft Program Comment on Accessible, Climate-Resilient, and Connected Communities” (Advisory Council on
Historic Preservation, August 8, 2024), 1–2, https://www.achp.gov/sites/default/files/2024-
08/ACCCProgramComment.DRAFT%208.8.24.pdf.
18
“Draft Program Comment,” 21–27.
19
“Draft Program Comment,” 2.
 128

renovations, clean energy technologies, and electrification of buildings.20 The ACHP states that this
Comment will accelerate energy savings by allowing installation of solar panels on and electrification of
historic buildings, working toward the Biden-Harris Administration’s goal of zero emissions from
buildings.21
The third sector, climate-friendly transportation, spans many agencies including the Department
of Transportation, HUD, and the Environmental Protection Agency. Affected activities include billions in
public transit investments, as well as significant funding for trails, bike infrastructure, and low-carbon
transportation construction materials.22 Little to no further review would be required for agency activities
like construction related to transit, pedestrians, and bicycles and work on bridges that do not serve
automobiles.23 The ACHP argues that loosening the review process allows more people to access safe
streets, transit, and new modes of transportation, in addition to saving the Department of Transportation
over ten billion dollars.24
Of course, the Draft Program Comment is more specific about these exemptions and conditions,
for example, by making sure that street furniture activities do not displace historic objects. Many of these
exemptions only apply to non-historic places. Nevertheless, the Comment comes across as sweeping and
bold. To offer some justification and background for this Comment, the ACHP provided past examples
where it issued Section 106 alternatives in each of these three economic sectors. It also offered that by
clarifying the “preferred approaches” for these climate-friendly undertakings, agencies could instead
spend more time reviewing undertakings with truly harmful impacts.25

V. CRITICISMS
Public comment ended for this Draft Program Comment on October 9th, 2024, at which point
numerous organizations and citizens had submitted their frustrations. An immediate, and shared concern
among many was that the Program Comment failed to align with the general intent and goals behind the
NHPA. In a response, the National Conference of State Historic Preservation Officers (NCSHPO) wrote
the Comment “should seek to harmonize, not subvert historic preservation, with other policy goals.” They
asserted that instead of preserving the nation’s historical and cultural foundations, the Comment attempts
to bypass preservation in favor of outside policies.26 This is a fair point, considering the ACHP explicitly
outlines how the Comment works toward the climate agenda of the Biden-Harris Administration. The
NHPA’s definition of the Council as an independent agency advising the President and Congress on
preservation strengthens this argument: preservation should be the top priority, not aligning itself with
external policy goals.
A key related concern of the American Cultural Resources Association (ACRA), a network of
cultural resource management companies, was that the Council has never issued a Program Comment of
its own volition. Indeed, the ACHP’s self-issued regulations give it the power to initiate a Program
Comment, but state that the Council may “provide” Program Comments, and repeatedly refer to the role
of the “agency official” in the process.27 The ACRA’s concern was that due to the unprecedented nature
of this Comment, it should involve more care, time, and consultation, which does not appear to be the

20
“Draft Program Comment,” 30–36.
21
“ACHP Announces.”
22
“Draft Program Comment,” 2.
23
“Draft Program Comment,” 37–42.
24
“ACHP Announces.”
25
“Draft Program Comment,” 4.
26
NCSHPO, “Response to ACHP Proposed Program Comment on Accessible, Climate-Resilient, & Connected
Communities,” NCSHPO (blog), August 29, 2024, https://ncshpo.org/2024/08/29/ncshpo-response-to-achp-
proposed-program-comment-on-accessible-climate-resilient-connected-communities/.
27
U.S. Government, 36 CFR § 800, Protection of Historic Properties.
 129

case.28 While the ACHP utilized examples of past Comments to justify this one, they were all examples of
a federal agency requesting a tailored review approach. On a similar note, multiple organizations noted
that the broad scope of the draft only adds confusion to the Section 106 process for all undertakings rather
than taking it away for “sustainable” ones.29
An additional common argument was that the Program Comment neglected the importance of
SHPO, tribal, and public consultation in the Section 106 and preservation process. A critical part of the
NHPA is its provision on SHPOs. These state officials are meant to consult with federal agencies on
federal undertakings and plans affecting historic property.30 In its response to the ACHP, the NCSHPO
argued that state and local level consultation is a “fundamental pillar” of historic preservation that is
ignored by this draft Comment. By applying the judgment of federal agencies such as the ACHP in place
of that consultation, not only are the complex consultation structures of the NHPA bypassed, but decades
of functional preservation practices are as well.31 It is important to note that while public consultation can
be seen as a hindrance to progress, it is intended to prevent future conflicts, mishaps, and oversights.
When done correctly, taking advantage of statutes such as the NHPA should be seen as an asset instead of
a barrier for federal agencies.
One could argue that these concerns are less about the August Draft Program Comment and more
about Program Comments or Section 106 alternatives in general. In a particularly critical response, the
Society for American Archaeology argued the Program Comment, and others like it, would be illegal.
Their reasoning was that this Comment violated the NHPA by ignoring the public consultation
provisions. However, they added that it was an example of “extra-legislative activity” with which the
Supreme Court was concerned in the recent Loper Bright Enterprises v. Raimondo decision, determining
that courts must not always defer to agency authority. “The ACHP provided itself with the authority to
issue program comments…without any such authorization or direction from Congress,” the SAA
asserted.32 While this argument blurs the focus to a larger discussion about the ACHP and administrative
law, it raises a good point. Does this Program Comment go beyond the ACHP’s legal authority to
promulgate regulations considered necessary to govern the NHPA?33 According to the SAA, the answer is
undeniably yes, it does.

VI. DISCUSSION
Although based on these discussions and concerns, it would appear that ideas of historic
preservation and progress in sustainable development are contradictory, that is not necessarily true. On a
surface level, Section 106 makes technological and sustainable progress more difficult. Yet, it is
important to remember that its goal is not to stop projects or become a roadblock. Instead, the NHPA, and
ACHP by extension, are meant to encourage responsibility for and interest in the nation’s history. By
keeping projects from destroying existing resources and encouraging care in dealing with those resources,
historic preservation is crucial to sustainability.34 The NHPA encourages the public to be more active in
the development of their built environment, and functions hand-in-hand with environmental legislation
such as NEPA to ensure that agencies are making researched, calculated decisions.
At the same time, concessions need to be made due to the realities of the NHPA. Although the
SAA might argue they violate the NHPA, Section 106 alternatives such as Program Comments are borne

28
Amanda Stratton, “ACRA Comments on Proposed ACHP Program Comment on Climate and Communities”
(American Cultural Resources Association, October 8, 2024), https://acra-crm.org/acra-comments-on-proposed-
achp-program-comment-on-climate-and-communities/.
29
Stratton.
30
U.S. Congress, National Historic Preservation Act, 1966.
31
NCSHPO, “Response to ACHP.”
32
Daniel H. Sandweiss, “SAA Final Comments” (Society for American Archaeology, September 20, 2024),
https://documents.saa.org/container/docs/default-source/doc-
governmentaffairs/final_comments_achp_pc_09202024.pdf?sfvrsn=53f62fae_3.
33
Sandweiss, “SAA Final Comments.”
34
“National Historic Preservation Act.”
 130

out of an effort to achieve the statute’s goals. Congress provided the ACHP with the authority to publish
regulations related to the NHPA, and past Program Comments have been successfully published in the
Federal Register with little Congressional objection and great success. There are also logical reasons for
the ACHP to prioritize sustainability and climate resiliency. While it is monumental, the NHPA is not a
perfect statute, and it did not predict or include provisions related to climate projects. The climate is
changing quickly, and countless landmarks and historically significant structures are at just as much risk
as anywhere else in the nation. As of 2018, eleven percent of all properties listed in the National Register
of Historic Places were within five miles of coastline and vulnerable to sea level rise.35
It is clear that in its current state, the alignment of this Draft Program Comment with the NHPA is
shaky. The most pressing issue is the Comment’s attempt to use federal authority to replace the public and
lower-level consultation, which is required by the NHPA. A striking implication of passing the Program
Comment is that it could incorrectly communicate the ACHP’s role as regulatory. Dictating exemptions
on common actions from multiple agencies without consultation on each exemption from SHPOs or other
local parties is not advisory. At the very least, the ACHP should make any streamlining of review for
individual sustainable building projects more transparent and subject to state, local, or public opinion.
Methods such as tiered exemptions or SHPO consultation on individual exemptions would allow for more
effective streamlining of Section 106 review without putting the participatory goals of NHPA at risk.

VII. CONCLUSION
Historic preservation law, while built around one major statute, involves a substantial amount of
depth and complexity. Due to the National Historic Preservation Act, heritage and history have had real
impacts on federal agency actions, so much so that there are exemptions and alternatives for review under
Section 106 of the NHPA. The Advisory Council on Historic Preservation’s role in this process is to
advise on a federal level regarding historic preservation policy, which exemptions can put into question.
When it comes to the Comment, organizations such as the ACRA and NCSHPO seem to be in
agreement, and present valid arguments about ACHP priorities and the scope of exemptions.
Additionally, the Comment has the potential to perpetuate the incorrect notion that regulation related to
preservation must be contrary to progress and sustainable development. In reality, consultation,
regulation, and careful consideration of history keeps the nation mindful of its existing resources. The
Advisory Council on Historic Preservation should reconsider significant portions of its Draft Program
Comment on Accessible, Climate-Resilient, Connected Communities. With editing such as more
specificity on requirements for exemption or including the much-needed voices of the public, tribes, and
state and local government, the ACHP can lawfully and efficiently use Section 106 alternatives as tools in
creating a sustainable future.

35
Kellie King, “Historic Preservation and Sea Level Rise,” Environmental, Social and Governance (ESG) Initiative
(blog), July 9, 2021, https://esg.wharton.upenn.edu/news/historic-preservation-and-sea-level-rise/.
 131

REPRESENTING CHILDREN’S VOICES: APPLICATION OF THE BEST INTERESTS

PRINCIPLE
Rena Watanabe

I. INTRODUCTION AND BACKGROUND

The right to family integrity is a fundamental constitutional right under the Due Process clause
that recognizes the ability for families to make their own decisions and live together without
governmental interference.1 Family integrity has become more visible in the immigration system, as
increased border security coupled with a lack of pathways for lawful status has given rise to immigrant
populations in the United States. Immigration courts handling child protection proceedings (including
child asylum cases) grapple with life-altering decisions concerning children who are victims of domestic
abuse, gender-based violence, child labor, and persecution in their home countries, sometimes perpetrated
by their own family members.2 The outcomes of these decisions can be life or death for children – they
can either find safe shelter in the United States, or be deported and subjected to danger in their home
countries. Yet, judges make such life-altering decisions that directly impact children’s safety,
permanency, and connection to their family without considering their own voices and viewpoints.
Ultimately, children in the legal system find themselves pawns of the Court. For some children of
immigrant families, familial structure provides stability and a sense of normalcy in their lives in a new
environment. For other children, staying with their family members will only perpetuate unsafe and
abusive situations that jeopardize their safety and wellbeing. It is evident that the current reality of our
immigration law system fails to protect the United States’ most vulnerable populations: unaccompanied
immigrant children. This paper aims to explore the complexities of child protection proceedings, examine
the flaws of the best interests principle, and argue that child protection proceedings should adopt a child-
centered approach which allows children to defend their independent constitutional rights to family
integrity.

II. REPRESENTING CHILDREN IN IMMIGRATION MATTERS

i. Nature of Immigration Courts
The immigration law system is no friend to an unaccompanied immigrant child. An
unaccompanied immigrant child is a minor who is under eighteen years of age and who has no parent or
legal guardian in the United States who is available to provide care.3 The current political climate, vocal
in its anti-immigrant rhetoric, jeopardizes the very fundamental rights of children to family integrity,
putting many immigrant children at great risk. The strength of the right to family integrity in the
immigration context has ebbed and flowed with the “plenary power doctrine,”4 which gives wide
constitutional latitude to the executive branch in immigration matters. Because the immigration courts are
not under the authority of the judicial branch, decisions of immigration courts remain vulnerable to the
whims and opinions of the president. In a conservative supermajority, the administration has moved not
only to limit the protections for immigrant children, but has made immigrant children a direct target of its
anti-immigration agenda. Because of the adversarial nature of the immigration system, unaccompanied
immigrant children bear a high burden of proof to defend themselves against the government. However,
they cannot freely exercise their due process rights since the immigration law system does not provide

1
Rachel Kennedy, “A Child’s Constitutional Right to Family Integrity and Counsel in Dependency Proceedings,”
Emory Law Journal 72, no. 4 (2023): https://scholarlycommons.law.emory.edu/elj/vol72/iss4/3.
2
Erin B. Corcoran, “Getting Kids Out of Harm's Way: The United States’ Obligation to Operationalize the Best
Interest of the Child Principle for Unaccompanied Minors,” Connecticut Law Review Online 47 (2014):
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2461759.
3
Kids in Need of Defense, “Chapter 1: Representing Children In Immigration Matters,” in Representing Children In
Immigration Matters, https://supportkind.org/wp-content/uploads/2015/04/Representing-Children-In-Immigration-
Matters-FULL-VERSION.pdf.
4
Cornell Law School, Definition of "plenary power," Legal Information Institute,
https://www.law.cornell.edu/wex/plenary_power.
 132

them legal representation. They must navigate the legal system and jurisdictional barriers alone, which
can be especially difficult if they are unfamiliar with the court proceedings in the United States.
Courts cannot reasonably expect children to articulate their experiences, psychological trauma,
and emotional hardships to an adult, let alone in an immigration court. Children may have a difficult time
trusting adults, because for many, adults are the ones who have exploited, abused, or mistreated them.
Therefore, children grow to distrust adults, and it is difficult to dismantle the distrust and cynicism that
have developed since their adolescent years. Further, for children who face language barriers and
experience difficulty in articulating their testimonies in English, it is paramount that immigrant children
have access to effective translation services and that they are understood in a culturally sensitive way.5 In
recognizing children’s inherent vulnerabilities, it is imperative that the legal system amplifies children’s
voices so that children can actively participate in and influence family decisions that impact their lives.
The following child asylum cases demonstrate how the Court’s flawed methodologies in assessing a
child’s credibility in their testimonies can be detrimental to their case outcomes.

ii. Case Studies

In Liu v. Ashcroft, Mei Dan Liu, who was detained and placed in removal proceedings in front of
the Immigration Judge, argued that the treatment she suffered qualifies to the level of persecution because
she was a minor (age sixteen) when she fled from her home country.6 However, the Board of Immigration
Appeals (BIA) concluded that Mei Dan’s testimony regarding the mistreatment she endured was not
“worthy of belief” and because she lied to the Judge about her age and the basis of her asylum claim, her
statements “undercut her credibility.” While the BIA found that the treatment of Mei Dan in her home
country was “undoubtedly deplorable,” the BIA concluded that she did present sufficient credible
evidence to satisfy the meanings of “well founded fear of persecution” within the Immigration and
Nationality Act, and thus denied her asylum claim.
In Kahssai v. I.N.S., Tsion Kahssai applied for asylum in the United States based upon the arrests
and killings of her father and brother, and the detention of her mother by the Ethiopian government.7 Her
family suffered persecution including imprisonment and execution, but Kahssai herself had not been
targeted. Kahssai was only three years old when the killings of her family members occurred, and thus her
testimony regarding the series of events is partially based on what others later told them. The Immigration
Judge cast doubt upon the credibility of the testimonies, claiming that the testimonies between her and her
siblings “differed in their recollection of the death of their father,” and that her credibility in describing
the events “cannot be determined” because of her young age at the time.8 As a result, the Immigration
Judge denied Kahssai’s application, and the Board of Immigration Appeals (BIA) affirmed the denial.
Mei Dan and Kahssai are a few of the many unaccompanied minor children in the United States
who are disregarded for their inability to defend their case. Both cases underscore how there are stringent
standards required for asylum eligibility, and the burden of proof for proving asylum without an adult
representative or attorney is almost an insurmountable bar for unaccompanied children. In evaluating
asylum cases, an asylum applicant must establish a “well founded fear of persecution” if they return to
their home country.9 Proving a well founded fear of persecution requires a subjective fear (their personal
belief of persecution), and objective evidence supporting the likelihood of persecution. Eliciting fears and
hardships relies heavily on subjective judgment by judges, as the psychological reactions to experiences
may vary from individual to individual.
The child’s testimony is not the only type of evidence that the immigration court must rely on, as
5
Jacqueline Bhabha, “Lone Travelers: Rights, Criminalization, and the Transnational Migration of Unaccompanied
Children,” The University of Chicago Law School Roundtable 7, no. 1 (2000):
http://chicagounbound.uchicago.edu/roundtable/vol7/iss1/11.
6
Liu v. Ashcroft, 380 F. (7th Cir. Aug. 17, 2004). https://casetext.com/case/liu-v-ashcroft-2.
7
Kahssai v. I.N.S., 16 F. (9th Cir. Feb. 4, 1994). https://casetext.com/case/kahssai-v-ins.
8
Ibid.
9
Immigration Equality, “3. Elements of Asylum Law,” in Asylum Manual,
https://immigrationequality.org/asylum/asylum-manual/.
 133

there can be sufficient evidence provided by other sources that will find a nexus in establishing a well
founded fear of persecution. The subjective element of assessing credibility in child asylum cases is
problematic in that courts fail to recognize their fears in a way that is sensitive to children’s unique
experiences of facing persecution. Throughout the judicial proceedings, the legal system should work to
maximize the child’s participation in their claims by taking into consideration the child’s best interests.
The following section will discuss the best interests principle and how it continues to significantly
influence realms of family and immigration law.

III. THE BEST INTERESTS PRINCIPLE

The best interests principle is a court doctrine largely adopted in judicial proceedings to
determine whether to remove a child from an abusive or neglectful environment.10 The Court arrives at a
decision by taking into consideration all relevant factors (ex. age, gender, mental and physical health of
parents, etc.) to assess what will be the best for the child’s health and wellbeing and to prioritize the
child's interests. The principle is applied to unaccompanied minors who have been abused or abandoned
by their parents, or whom it would not be in the best interests to return to their home countries.11
The definition of a child’s “best interests” varies from case-to-case. There is no singular concept
of “best interests,” but Courts evaluate by “incorporating the child’s voice, and prioritizing safety,
permanency, and well-being of every individual child.”12 The best interests standard is amorphous, as
there is no consensus for what is “best” or even “good” for all children. Thus, it becomes difficult to
ensure objectivity and fairness in these decisions when children’s experiences vary significantly.
The subjectivity of the best interests principle can cause inconsistent and biased outcomes for
child asylum cases. Children of immigrants are substantially more likely than children with U.S. born
parents to be poor, have food-related problems, live in crowded housing, lack health insurance, and be in
fair or poor health.13 Judges in immigration courts who do not come from a similar upbringing as the
children can have different conceptual notions of what it means to live in a “clean” living space or have
access to “nutritious” food.14 While the law prescribes a judgment based on a child’s best interests,
children from marginalized communities experience the legal system differently than an affluent white
child. Therefore, minority children and children from low socioeconomic status suffer from the lack of
certainty inherent in the best interests principle.
Overall, the courts’ consideration of the best interests principle can act blind to the unique needs,
inherent vulnerabilities, and capacities of children, depriving immigrant children of minimal safeguards
and due process protections.15 While the application of the best interests principle can be flawed due to its
subjective nature, it is nevertheless widely used as a legal compass to reflect the commitment to protect
children from harm, recentering its focus on child agency, emphasizing the safety, permanency, and well
being of children.

IV. COMPETING PARENTAL, GOVERNMENTAL, AND CHILD INTERESTS

The overarching question lies in whether our current immigration system values certain rights
over others. Does the “best interests” principle presume that parents are free to determine what is “best”
for their children? What is the government’s responsibility in protecting children from “abusive” or

10
Cornell Law School, Definition of “best interests of the child,” Legal Information Institute,
https://www.law.cornell.edu/wex/best_interests_of_the_child.
11
“In the Best Interests of the Child Asylum-Seeker: A Threat to Family Unity,” Harvard Law Review 134, no. 4
(2021): https://harvardlawreview.org/print/vol-134/in-the-best-interests-of-the-child-asylum-seeker/.
12
Corcoran, “Getting Kids.”
13
David B. Thronson, “Creating Crisis: Immigration Raids and the Destabilization of Immigrant Families,” Wake
Forest Law Review 43 (June 2008) https://www.wakeforestlawreview.com/wp-
content/uploads/2014/10/Thronson_LawReview_4.08.pdf.
14
“In the Best.”
15
Dennis Stinchcomb, “In Children's Best Interests: Charting a Child-Sensitive Approach to U.S. Immigration
Policy,” CLALS Working Paper Series 28 (2020): https://doi.org/10.2139/ssrn.3644399.
 134

“neglectful adults?” On what grounds is state intrusion in private family matters justified? The
immigration court handles such questions on a daily basis. Ultimately, under immigration and citizenship
laws, parents have the responsibility of developing secure relationships with their children. Under the due
process clause, parents have a well established fundamental right in the care, custody, and control of their
children.16 Whatever the Court decides, there will be hardship for involved parties. It may be immigrant
parents, who face the possibility of losing their children through interaction with unfamiliar judicial and
child welfare systems. It may be the psychological parents, who are torn away from their children for
whom they have long and faithfully cared. The harsh reality for parents is that however secure their
parental rights may be, as a practical matter, immigration and citizenship laws do not shield them from
being safe and secure in their relationships with their children.
What should justify state intrusion on the privacy of family relationships? The notion of parens
patriae, which is Latin for “parent of the country,”17 delegates responsibility to the government to remove
children from unsafe and neglectful homes.18 Oftentimes, muddled issues and troubles within a household
are not obvious or evident from an outside observer. Children may be suffering from hidden abuse behind
closed doors. Further, children who are victims of domestic violence may not have the courage to speak
up or ask for help. Therefore, state interference is necessary to uncover such abuse, as the family enclave
may become a cover for exploiting the inherent inequality between a parent and child. Courts respect
family privacy in cases that prioritize the right for parents to raise their children as they think best, but this
can worsen those less observable abusive relationships. Therefore, proponents of increased state
intervention claim that family privacy can put the child in more danger, providing justifications for
greater government interference.
On the other hand, it is questionable whether government interference is an appropriate means of
creating safer family environments and amending parent-child bonds. The legal system has neither the
resources or capacity to manage the often complex and delicate nature of interpersonal bonds between a
parent and child. Even under a professional facade, the government cannot be parents to someone else’s
children. If the government makes an erroneous decision in removing the child from their parents, or fails
to remove a child from an abusive home environment and provide a safer alternative, it could bring long-
lasting consequences to the health and stability of the family unit. The most that the government can do is
to place themselves in the position of children of different ages, backgrounds, and provide a pathway to
establish or reestablish a family for the child as quickly as possible. Acknowledging the boundaries to
which the state can interfere with a family unit helps us balance governmental interests with familial
interests at stake.

V. CONCLUSION
Children’s silence should not be the norm in immigration courts handling child protection
proceedings. As Jennifer Nagda, the Chief Program Officer of the Young Center for Immigrant
Children’s Rights states, “the best interests of the child standard… requires that each child’s story be
known and understood before immigration authorities make decisions that could put the child in harm’s
way. Such individualized inquiries are the hallmark of fairness and due process, which are stated goals of
our immigration courts.”19 One of the greatest strengths of the best interests principle is its ability to make
children visible, and to bring their voice and their interests to the forefront. Determining the credibility of
childrens’ testimonies remains a hurdle for many unaccompanied immigrant children who are defending
their case, so providing a child with legal representation should be the minimal standard to ensure that

16
Shanta Trivedi, “My Family Belongs to Me: A Child's Constitutional Right to Family Integrity,” Harvard Civil
Rights-Civil Liberties Law Review 56, no. 2 (2021): https://journals.law.harvard.edu/crcl/wp-
content/uploads/sites/80/2021/10/Trivedi.pdf.
17
Cornell University, Definition of “parens patriae,” Legal Information Institute,
https://www.law.cornell.edu/wex/parens_patriae.
18
Cornell University, Definition of "parens patriae," Legal Information Institute.
19
Stinchcomb, “In Children's.”
 135

each child is receiving due process protection in their proceedings. A child-centered framework
encourages the government to protect children from exploitation or neglect, and ensure that children have
a voice, by creating the opportunity for a child to express their perspectives and participate in the
decision-making process. The current state of immigration policy is endangering immigrant children's
fundamental due process rights, eroding the integrity of the immigration system as a whole. To remedy
the mistreatment of children in child asylum cases, it is integral that we implement the “best interests”
standard to enable equitable child protection proceedings that allow the child’s voice to be heard.
 136

RESTRAINING THE REGULATORY STATE: SEC V. JARKESY ET AL.

Allison Wong

I. INTRODUCTION
On June 27th, 2024, the U.S. Supreme Court decided Securities and Exchange Commission
(SEC) v. Jarkesy et al. in a 6-3 ruling in favor of the respondents.1 George Jarkesy Jr. created hedge funds
in 2007 and 2009 with the financial backing of Patriot28 LLC.2 On March 22, 2017, SEC pursued legal
action against Jarkesy et al. for alleged overvaluation and other fraudulent claims.3 Based on guidelines
set by the federal antifraud provisions as well as the Dodd-Frank Wall Street Reform and Consumer
Protection Act, the SEC proceeded with an in-house adjudication process.4 In response to the
Administrative Law Judge’s decision to impose civil penalties, Jarkesy et al. petitioned the U.S. Fifth
Circuit District Court of Appeals, where the decision was reversed and remanded.5 The case brought up
key issues regarding the Seventh Amendment right to trial by jury, the difference between public and
private rights, the boundaries of common law, separation of powers, and the nondelegation doctrine. In
turn, the SEC appealed to the U.S. Supreme Court, which focused specifically on the Seventh
Amendment in the majority opinion.6 SEC v. Jarkesy matters because it examines the ability of
government agencies to uphold regulations as well as Congress’s ability to delegate that responsibility. In
combination, the Fifth Circuit and SCOTUS decisions in this case broaden both the depth and scope of its
impact. Although the SCOTUS decision in SEC v. Jarkesy appropriately categorizes securities law as a
private rights and common law concern, it fails to consider the potentially devastating impacts of its
precedent. Based on the practical limitations of governmental institutions, this case develops a legal
fantasy that works towards not only dissecting but also dismantling the current regulatory state.

II. BACKGROUND
In response to the 1929 Wall Street Crash, Congress sought to raise transparency and
accountability standards through the federal regulation of securities market investments.7 The Securities
Act of 1933, Securities Exchange Act of 1934, and Investment Advisers Act of 1940 (“antifraud
provisions”) regulated securities registration, securities trading, and advisory disclosures.8 Under the
Securities Exchange Act of 1934, Congress established the Securities and Exchange Commission (SEC)
to enforce federal securities regulations using two major mechanisms.9 First, the SEC can file a suit
against an alleged fraudulent investor in federal court, adjudicated by an Article III judge and jury.10
Second, the SEC can adjudicate the suit in-house, using an Administrative Law Judge (ALJ) without a
jury.11 While federal court proceedings adhere to the Federal Rules of Civil Procedure (FRCP) guidelines
on evidence and discovery, SEC proceedings follow the Commission Rules of Practice, granting
discretionary authority to the ALJ on fact-finding matters.12
The SEC was authorized to employ either adjudicatory forum for its legal proceedings. Breaches
of federal securities laws are commonly remediated via imposition of civil penalties on parties exercising

1
"SEC v. Jarkesy, 603 U.S. ___ (2024)." Justia U.S. Supreme Court Center.
https://supreme.justia.com/cases/federal/us/603/22-859/#annotation.
2
“SEC v. Jarkesy,” Justia.
3
“SEC v. Jarkesy,” Justia.
4
“SEC v. Jarkesy,” Justia.
5
“SEC v. Jarkesy,” Justia.
6
“SEC v. Jarkesy,” Justia.
7
"Securities Law History." Legal Information Institute. Last modified October 2023.
https://www.law.cornell.edu/wex/securities_law_history.
8
“SEC v. Jarkesy,” Justia.
9
“SEC v. Jarkesy,” Justia.
10
“SEC v. Jarkesy,” Justia.
11
“SEC v. Jarkesy,” Justia.
12
“SEC v. Jarkesy,” Justia.
 137

noncompliance.13 The SEC was only able to levy these fines through federal courts until 2010 when
Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”),
opening either forum to civil penalty remediation.14 The passage of Dodd-Frank initiated a shift towards
SEC reliance on in-house over federal court adjudication. Before 2010, the SEC mainly used federal
courts and adjudicated less than fifty-percent of its suits in-house.15 In the four fiscal years following
Dodd-Frank, the amount of in-house adjudications rose to over eighty-percent.16 Across the same time
period, SEC data reveals a ninety-percent success rate under in-house ALJs compared to only sixty-nine
percent in federal courts.17 These success-rate discrepancies in both initial and appellate rulings
incentivize the SEC to employ in-house adjudication in a post-Dodd-Frank environment.
Utilizing ALJ adjudication is central to this case. Defendant George Jarkesy established hedge
funds in 2007 and 2009 with the financial backing of Patriot28 LLC.18 In total, they managed over
twenty-four million dollars in financial assets across more than one-hundred investors.19 In 2011, the SEC
launched an investigation into the two hedge funds established by Jarkesy et al.20 In 2017, the SEC began
legal action alleging engagement in overvaluation and fraudulent material claims-making in violation of
the antifraud provisions.21 The SEC opted to adjudicate in-house, and the ALJ held that Jarkesy et al.
violated federal securities laws and imposed three-hundred thousand dollars in civil penalties and six-
hundred and eighty-five thousand dollars in disgorgement of illegal gains.22 Following the ALJ’s ruling,
Jarkesy et al. filed a petition for review in the U.S. Court of Appeals for the Fifth Circuit, contending a
violation of the Seventh Amendment right to trial by jury.23

III. PERTINENT CONSTITUTIONAL PRINCIPLES

The right to trial by jury is enshrined by the Seventh Amendment of the U.S. Constitution.24
During British colonial rule over America, the British avoided using American juries by adjudicating
within admiralty, vice admiralty, and chancery courts.25 Especially in cases of legal enforcement, British
colonial administrators received higher rates of favorable rulings in juryless tribunals.26 Resentment over
this practice was incorporated into the American fight for independence and the drafting of the U.S.
Constitution.27 Many of the founders did not believe that the judiciary, as outlined in Article III,
adequately safeguarded the right to a fair trial.28 In Federalist No. 83, Alexander Hamilton argued that
lack of a stronger right to trial by jury in civil cases was among the most substantial critiques against

13
“SEC v. Jarkesy,” Justia.
14
"H.R.4173 - Dodd-Frank Wall Street Reform and Consumer Protection Act." Library of Congress.
https://www.congress.gov/bill/111th-congress/house-bill/4173/text.
15
Eaglesham, Jean. "SEC Wins With In-House Judges." The Wall Street Journal, May 15, 2015.
https://www.wsj.com/articles/sec-wins-with-in-house-judges-1430965803.
16
Eaglesham, “SEC Wins With In-House Judges.”
17
Eaglesham, “SEC Wins With In-House Judges.”
18
“SEC v. Jarkesy,” Justia.
19
"Petition for Review of an Order of the United States Securities and Exchange Commission No. 3-15255." United
States Court of Appeals for the Fifth Circuit. https://www.supremecourt.gov/docket/docketfiles/html/public/22-
859.html.
20
“SEC v. Jarkesy,” Justia.
21
“SEC v. Jarkesy,” Justia.
22
“Petition for Review,” Court of Appeals.
23
“Petition for Review,” Court of Appeals.
24
"Seventh Amendment." Legal Information Institute.
https://www.law.cornell.edu/constitution/seventh_amendment.
25
“SEC v. Jarkesy,” Justia.
26
“SEC v. Jarkesy,” Justia.
27
"The Federalist Papers: No. 83." Yale Law School Lillian Goldman Law Library: The Avalon Project.
https://avalon.law.yale.edu/18th_century/fed83.asp.
28
“Federalist No. 83,” The Avalon Project.
 138

ratification.29 The framers addressed this concern with the Seventh Amendment of the Bill of Rights,
further guaranteeing the right of trial by jury.30 The Due Process Clause of the Fifth Amendment
established the right to independent judges and juries as well as fair trial procedures.31
An exception to the Seventh Amendment right to trial by jury exists for public rights which can
be constitutionally adjudicated within juryless agencies.32 Public rights involve legal claims related to the
government such as revenue collection, Native American tribal relations, administration of public lands,
and some areas of customs and immigration law.33 Generally, the legislative and executive branches
adjudicate public rights suits outside of the judicial system and jurisdiction of Article III courts.34 Private
rights, in contrast, are legal claims regarding private citizens resolved only under Article III courts.35 The
distinction between public and private rights is often delineated by the category of common law. Common
law relies heavily on precedent developed by relevant court decisions, as used by Article III courts, rather
than codified rules and guidelines, as used by administrative agencies delegated from legislative
statutes.36 During British colonial rule, civil penalties and traditional fraud suits were adjudicated in
common-law courts and never in admiralty courts.37 Common law, therefore, began to signify private
rights and Article III designations.38
The nondelegation doctrine upholds the constitutional principle of separation of powers.39
Government power is divided between the legislative, executive, and judicial branches delineated by
Articles I, II, and III of the Constitution, respectively.40 In Federalist No. 47, James Madison argued the
importance of these designations– the three branches must work together without encroaching on each
other.41 The nondelegation doctrine applies specifically to Congress, prohibiting the delegation of its
Article I responsibilities outside of the legislative branch.42 Law-making duties cannot be placed under the
discretion of the executive branch, judicial branch, or private entity.43 In J.W. Hampton v. United States
(1928), SCOTUS ruled that, to abide by the nondelegation doctrine, Congress must provide an intelligible
principle to federal regulatory agencies by sufficiently outlining what and how regulations ought to be
enforced.44

IV. U.S. COURT OF APPEALS DECISION

29
“Federalist No. 83,” The Avalon Project.
30
"Seventh Amendment," Legal Information Institute.
31
"Seventh Amendment," Legal Information Institute.
32
"The Seventh Amendment: Interpretation & Debate." National Constitution Center.
https://constitutioncenter.org/the-constitution/amendments/amendment-vii/interpretations/125.
33
“SEC v. Jarkesy,” Justia.
34
"Article III Section 1: Legislative Courts Adjudicating Public Rights." Legal Information Institute.
https://www.law.cornell.edu/constitution-conan/article-3/section-1/legislative-courts-adjudicating-public-rights.
35
“Article III Section 1,” Legal Information Institute.
36
"Common Law." Legal Information Institute. Last modified May 2020.
https://www.law.cornell.edu/wex/common_law.
37
“SEC v. Jarkesy,” Justia.
38
“SEC v. Jarkesy,” Justia.
39
"Separation of Powers." Legal Information Institute. Last modified September 2024.
https://www.law.cornell.edu/wex/separation_of_powers.
40
“Separation of Powers,” Legal Information Institute.
41
"The Federalist Papers: No. 47." Yale Law School Lillian Goldman Law Library: The Avalon Project.
https://avalon.law.yale.edu/18th_century/fed47.asp.
42
"Nondelegation Doctrine." Legal Information Institute. Last modified July 2023.
https://www.law.cornell.edu/wex/nondelegation_doctrine.
43
“Nondelegation Doctrine,” Legal Information Institute.
44
"J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928)." Justia U.S. Supreme Court Center.
https://supreme.justia.com/cases/federal/us/276/394/.
 139

On May 18th, 2022, the U.S. Court of Appeals for the Fifth Circuit reversed and remanded,
affirming the constitutional violations Jarkesy et al. alleged against the SEC.45 First, the Court ruled that
the SEC use of an in-house proceeding violated the petitioners’ right to trial by jury.46 The Seventh
Amendment maintains this right for suits under common law, with Tull v. United States (1987)
establishing that civil penalties meet the statutory requirement for common law remedies.47 Atlas Roofing
Company v. Occupational Safety and Health Review Commission (1977) is cited as an example of when
Congress can delegate agency adjudication to in-house, juryless processes for public rights.48 In this
particular argument, the Court contests that the suit against Jarkesy et al. belonged under SEC in-house
proceedings, not the existence of the forum itself. Furthermore, Gran Financiera, S. A. v. Nordberg
(1989) requires Congress to statutorily delineate public rights through language of the regulatory scheme
delegated to an agency in order to meet the Seventh Amendment exception.49
Second, the Court ruled that Congress violated the nondelegation doctrine by delegating
government powers to the SEC in the absence of intelligible principle.50 Dodd-Frank granted the SEC
prosecutorial discretion in enforcing the law, a power vested in the executive branch, by allowing the
agency choice in using Article III courts or in-house proceedings.51 Mistretta v. United States (1989)
requires that Congress provide an intelligible principle when delegating regulatory responsibilities.52
Instead, Congress granted the SEC significant discretion in adjudication choices without explicit guidance
on how to carry out regulatory powers.53
Third, the Court ruled that SEC ALJs violate Article II by encroaching on the executive powers
constitutionally vested in the President.54 Article II states that the President shall “take care that the Laws
be faithfully executed,”55 which the Court interpreted as having authority over the appointment and
removal of ALJs. Precedent set by Myers v. United States (1926)56 and Free Enterprise Fund v. Public
Co. Accounting Oversight Bd. (2010)57 both establish the President’s authority over executive officers.
Lucia v. SEC (2018) categorized SEC ALJs constitutionally as “inferior officers” based on their
enforcement duties.58 Therefore, the Court holds that the current status of ALJs is unconstitutional based
on barriers they construct against a President’s justified executive authority.
In response to this ruling, the SEC appealed the case up to the U.S. Supreme Court.

V. SCOTUS DECISION
In SEC v. Jarkesy, SCOTUS held that the Seventh Amendment right to trial by jury must be
maintained for the defendant when the SEC is imposing civil penalties on them for committing securities

45
“Petition for Review,” Court of Appeals.
46
“Petition for Review,” Court of Appeals.
47
"Tull v. United States, 481 U.S. 412 (1987)." Justia U.S. Supreme Court Center.
https://supreme.justia.com/cases/federal/us/481/412/.
48
"Atlas Roofing Co. v. Occupational Safety and Health Review Comm'n, 430 U.S. 442 (1977)." Justia U.S.
Supreme Court Center. https://supreme.justia.com/cases/federal/us/430/442/.
49
"Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989)." Justia U.S. Supreme Court Center.
https://supreme.justia.com/cases/federal/us/492/33/.
50
“Petition for Review,” Court of Appeals.
51
“Petition for Review,” Court of Appeals.
52
"Mistretta v. United States, 488 U.S. 361 (1989)." Justia U.S. Supreme Court Center.
https://supreme.justia.com/cases/federal/us/488/361/.
53
“Petition for Review,” Court of Appeals.
54
“Petition for Review,” Court of Appeals.
55
"Article II." Legal Information Institute. https://www.law.cornell.edu/constitution/articleii.
56
"Myers v. United States, 272 U.S. 52 (1926)." Justia U.S. Supreme Court Center.
https://supreme.justia.com/cases/federal/us/272/52/.
57
"Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U.S. 477 (2010)." Justia U.S. Supreme
Court Center. https://supreme.justia.com/cases/federal/us/561/477/.
58
"Lucia v. Securities and Exchange Commission, 585 U.S. ___ (2018)." Justia U.S. Supreme Court Center.
https://supreme.justia.com/cases/federal/us/585/17-130/#tab-opinion-3918481.
 140

fraud.59 The federal “antifraud provisions” enforced by the SEC categorize the Commission’s lawsuits
under common law, necessitating the use of the Seventh Amendment.60 Additionally, the SEC’s suit did
not meet the grounds for a public rights exception to the right to trial by jury. The Court decided SEC v.
Jarkesy by a 6-3 majority of Justices John G. Roberts Jr., Clarence Thomas, Samuel A. Alito Jr., Neil M.
Gorsuch, Brett M. Kavanaugh, and Amy Coney Barrett.61 Justices Sonia Sotomayor, Elena Kagan, and
Ketanji Brown Jackson dissented.62 Chief Justice John G. Roberts Jr. authored the majority opinion,
Justice Neil M. Gorsuch authored a concurring opinion, and Justice Sonia Sotomayor authored the
dissenting opinion.63
SCOTUS decided SEC v. Jarkesy solely on the grounds of the Seventh Amendment, without an
examination of broader constitutional impacts in the majority opinion.64 First, Roberts argued that the
scope of the case is within common law and private rights, not public rights. In Murray’s Lessee v.
Hoboken Land & Improvement Company (1856), the Court held that issues concerning common lawsuits
cannot be delegated out of the judicial system by Congress.65 In SEC v. Jarkesy, the alleged violation of
anti-fraud provisions is considered common law fraud and imposition of civil penalties on Jarkesy enters
the realm of private rights.66 An in-house ALJ adjudicating lawsuits within the SEC violates this
precedent of when Congress can delegate outside the judicial system.67 Furthermore, in Stern v. Marshall
(2011), the Court held that a lawsuit within the bounds of federal jurisdiction has to be presided over by
an Article III court.68 Throughout SEC v. Jarkesy, debate arose over whether or not a civil penalties
lawsuit was legally considered a traditional fraud claim, but under the precedent of common law
designation, this distinction largely does not matter. Historically, both civil penalties and traditional fraud
suits were adjudicated in common-law courts which makes the SEC’s suit undeniably under the issue of
common law.69 Additionally, there are many similarities between common law fraud and federal
securities fraud, making the SEC’s suit fall under the issue of common law.70 Both types of fraud aim to
fight against lack of accuracy or lack of transparency in material facts.71 In Dura Pharmaceuticals, Inc. v.
Broudo (2005) the Court established that elements of common law should be used to interpret lawsuits
regarding federal securities laws.72
Second, in Granfinanciera, S. A. v. Nordberg (1989), the court held that Congress was not
permitted to delegate legal proceedings to non-Article III courts without juries even under the Seventh
Amendment’s public rights exception.73 In Granfinanciera, actions of conveyance fraud under bankruptcy
laws were dealt with in the absence of Article III bankruptcy judges and juries because Congress
delegated those powers out of federal courts.74 In SEC v. Jarkesy, the Granfinanciera precedent means
that the Seventh Amendment cannot be outwardly dismissed simply because Congress created an
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64
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65
"Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272 (1856)." Justia U.S. Supreme Court Center.
https://supreme.justia.com/cases/federal/us/59/272/#tab-opinion-1964018.
66
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67
“SEC v. Jarkesy,” Justia.
68
"Stern v. Marshall, 564 U.S. 462 (2011)." Justia U.S. Supreme Court Center.
https://supreme.justia.com/cases/federal/us/564/462/#tab-opinion-1963620.
69
"Common Law," Legal Information Institute.
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"Common Law," Legal Information Institute.
71
"Common Law," Legal Information Institute.
72
"Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336 (2005)." Justia U.S. Supreme Court Center.
https://supreme.justia.com/cases/federal/us/544/336/#tab-opinion-1961824.
73
"Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989)." Justia U.S. Supreme Court Center.
https://supreme.justia.com/cases/federal/us/492/33/#tab-opinion-1958082.
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administrative agency with the power to adjudicate its own suits. Throughout the case, the SEC has
pushed against the use of Granfinanciera on the grounds that the federal government itself is party to the
legal action and thereby the ALJs in the SEC are in a different position than the bankruptcy judges.75
Even within public rights, however, in Northern Pipeline Construction Company v. Marathon Pipe Line
Company (1982), the Court held that adjudication of lawsuits should still lean towards Article III
decisions.76 Northern Pipeline prioritizes the content of the lawsuit over who initiated it, where it was
initiated, or how it was initiated.77 The content of the SEC’s lawsuit against Jarkesy should therefore
adhere to Granfinanciera guidelines. Atlas Roofing Company, Inc. v. Occupational Safety and Health
Commission (1977) is an example of when the Court held the public rights exception to the Seventh
Amendment.78 As a boundary of the exception, the Court emphasized that alleged violation was outside
the realm of common law and was therefore under public rights.79 The content of the lawsuit adhered to
the exception, not the mere fact that Congress had allowed an in-agency adjudication process to exist for
the Occupational Safety and Health Commission.80 In SEC v. Jarkesy, therefore, the mere existence of in-
house proceedings under ALJs does not violate the Seventh Amendment nor does it relate to why the
Court did not categorize the lawsuit under the public rights exception. It was the content of the alleged
violation that affirmed its position in common law and the private rights sector.
In the concurring opinion, Gorsuch argues that the Seventh Amendment alone is not enough to
justify ruling in favor of Jarkesy et al.81 He believes that Article III and the Fifth Amendment’s Due
Process Clause play key roles in what is considered a fair trial under the U.S. legal system.82 Article III
gives individuals the right to a trial with an independent judge, and Gorsuch discusses how the SEC’s use
of their ALJs violates this right.83 Under Dodd-Frank, civil penalties are placed under the discretion of the
SEC Commissioners.84 By the fact that the Commissioners initiated the lawsuit themselves, the idea of an
independent decision maker no longer exists. Not only is the ALJ hired by the SEC, they lack the check
of a jury because the ALJ decides the fact-finding process, evidence use, and legal justification.85 SEC
proceedings follow the Commission’s own rules of practice while the ALJ has discretion regarding fact-
finding and discovery issues.86
The Due Process Clause of the Fifth Amendment gives individuals a right to a trial in accordance
with basic legal principles.87 Specifically, it states that an individual’s life, liberty, or property cannot be
taken away through government action without safeguards and procedural due process.88 Procedural due
process includes elements of court proceedings that uphold an impartial adjudication.89 Gorsuch argues
that the SEC use of in-house proceedings violates the right of Jarkesy et al. to procedural due process.90
At the federal court level, a defendant has the right to discovery for the evidence-gathering process and

75
“Granfinanciera v. Nordberg,” Justia.
76
"Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982)." Justia U.S. Supreme Court
Center. https://supreme.justia.com/cases/federal/us/458/50/#tab-opinion-1954678.
77
“Northern Pipeline v. Marathon,” Justia.
78
"Atlas Roofing v. Occupational Safety," Justia.
79
"Atlas Roofing v. Occupational Safety," Justia.
80
"Atlas Roofing v. Occupational Safety," Justia.
81
"Atlas Roofing v. Occupational Safety," Justia.
82
"Atlas Roofing v. Occupational Safety," Justia.
83
"Article III." Legal Information Institute. https://www.law.cornell.edu/constitution/articleiii.
84
"Dodd-Frank," Library of Congress.
85
"Administration Law Judge." Legal Information Institute. Last modified November 2021.
https://www.law.cornell.edu/wex/administrative_law_judge_(alj).
86
“Administrative Law Judge,” Legal Information Institute.
87
"Due Process." Legal Information Institute. Last modified October 2022.
https://www.law.cornell.edu/wex/due_process.
88
"Due Process," Legal Information Institute.
89
"Due Process," Legal Information Institute.
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right to subpoena third party witness testimony.91 Additionally, because the Federal Rules of Civil
Procedure (FRCP) are followed, the actual trial would include cross examinations and direct testimony
from witnesses to avoid hearsay.92 At the SEC in-house level, a defendant does not have discovery rights
because the agency provides evidentiary support and documents.93 ALJs are in charge of subpoenas and it
is difficult for a defendant to convince the ALJ to subpoena third-party testimony that goes against the
interests of the SEC.94 The ALJ also has enormous discretion to apply the rules of evidence for the
agency. Unlike the strict federal rules against hearsay, the ALJ is free to include sworn statements from
supporting testimony that occurred outside of the courtroom.95 The defendant’s legal team may find it
difficult to verify the content in such statements, and cross examination of SEC-supporting witnesses is
not possible because the witnesses themselves are not present in the courtroom.96
One remedy Jarkesy et al. appeared to have had access to was the appeals process. However,
Gorsuch argues that this was strictly nominal and not an effective means of due process. With the in-
house adjudication process, Jarkesy et al. would have to appeal to the SEC itself.97 Again, the process
here is far from independent because the Commission initiated the suit, hired the ALJ that ruled against
Jarkesy et al., and approved the civil penalties imposed by the ALJ.98 Therefore, the SEC can refuse to
revisit the decision or it can decide to review the case and increase the level of civil penalties.99 There is a
potential, therefore, that upon appeal, the decision either remains the same or becomes more damaging to
the defendant. Jarkesy et al. eventually charged the SEC in the U.S. District Court because his original
appeal to the Commission simply led to the SEC reinforcing the ALJ’s ruling.100

VI. IMPLICATIONS FOR THE REGULATORY STATE

In the dissenting opinion, Sotomayor argues that SEC v. Jarkesy challenges the ability of
Congress to carry out a key responsibility: recognizing a key issue lacking sufficient remedy and utilizing
statutory regulation schemes to address it.101 The Great Depression, from the 1929 Wall Street Crash
through the 1930s, served as an impetus to alter the landscape of the financial securities market. The key
issue was an absence of both transparency and accountability in disclosures and business practices,
leading to precarious and fraudulent investments met with the negligible authority of existing remedies.102
In response to this problem, Congress enacted the antifraud provisions and statutorily equipped a federal
agency, the SEC, with authority to carry out federal regulations.103 The capacity of Congress to exercise
this power was enshrined in the U.S. Constitution to protect public interest.
The majority opinion’s assertion that the imposition of civil penalties by governmental agencies
falls under the Seventh Amendment right to trial by jury in the federal court system directly challenges
this key responsibility. Following the SEC, Congress has continued to enact regulatory schemes for
federal agencies to uphold regulations via civil penalties.104 For example, the Department of Agriculture
(USDA), Department of Justice (DOJ), the Food and Drug Administration (FDA), the Federal Energy
Regulatory Commission (FERC), and the Environmental Protection Agency (EPA) are among federal

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"Federal Rules of Civil Procedure." Legal Information Institute. https://www.law.cornell.edu/rules/frcp.
92
"Federal Rules of Civil Procedure," Legal Information Institute.
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“SEC v. Jarkesy,” Justia.
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“Administrative Law Judge,” Legal Information Institute.
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“Administrative Law Judge,” Legal Information Institute.
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agencies using administrative law to enforce regulation.105 In addition to the SEC, agencies like the EPA
and Consumer Financial Protection Bureau (CFPB) were established with the choice between in-house
and federal court adjudication to carry out legal proceedings.106 Other agencies, such as the USDA,
FERC, and Occupational Safety and Health Administration (OSHA) can only use in-house administrative
proceedings.107
The initial purpose of delegating enforcement authority to federal agencies lies in expertise and
efficiency.108 With the relevant knowledge and expertise, each agency can focus on a particular area of
regulation and increase the specificity of federal standards based on how their work evolves over time.
For example, Congress can set general guidelines for consumer protection, but the FDA has the expertise
to clarify those guidelines and detect the severity of violations and malpractice. The FDA can focus on
specific food and drug products, with the resources to regulate manufacturing, disclosures, and selling,
while holding companies accountable when those standards fail to be met.109 In-house adjudication
processes are based on this level of expertise as well as a need for efficiency with the size and scope of
regulatory violations dealt via legal proceedings. Concentrating legal processes to agencies with
specialized duties allows for greater refinement and uniformity in adjudication.110 Additionally, the
agencies themselves are most familiar with the relevant regulatory landscape, allowing them to better
identify and address alleged infractions.
As a result of SEC v. Jarkesy, the ability of these agencies to carry out their basic functions is at
stake. Some federal agencies have the choice to shift to federal court proceedings to adjudicate regulatory
suits, but others that solely rely on in-house proceedings will have to receive an altered statute from
Congress allowing them access to the federal court system.111 Even if these agencies can shift over to
federal court systems, abiding by the Court’s decision on the right to trial by jury, the amount of cases
that the agencies can feasibly pursue will fall dramatically. Not only is it resource-intensive to carry out
jury trials, the federal court system will be overburdened by the sheer volume of casework on the
complexities of regulatory fields it is not familiar with.112 The precedent set by SEC v. Jarkesy maintains
the right for federal agencies to regulate via imposition of civil penalties, but it increasingly burdens and
complicates the avenue to do so by upholding the right to trial by jury. Basic regulatory functions of
public interest such as clean water, clean air, and safe food are now inundated with obstacles to make
carrying out basic standards cumbersome, and at the expense of federal judges lacking the expertise on
incredibly specific and specialized issues.113 In efforts to dissect the regulatory state’s abiding by
important constitutional principles of procedural justice and the separation of powers, SEC v. Jarkesy has
planted the seeds to dismantle it.

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