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Islands of Algorithmic Integrity: Imagining a Democratic Digital Public Sphere

September 2025September 2025Aziz Z. Huq*

Introduction

A class of digitally mediated online platforms play a growing role as the primary sources of Americans’ knowledge about current events and politics. Prominent examples include Facebook, Instagram, TikTok, and X (which had formerly been known as Twitter). While only eighteen percent of Americans cited social media platforms as their preferred source of news in 2024, this number had risen by a striking six points since 2023.¹ These platforms also compete in “one of the most concentrated markets in the United States,”² as a consequence of network effects and high barriers to entry.³ Current trends suggest that social media will soon outpace traditional news websites as the main source for a plurality of Americans’ understanding of what happens in the world.⁴ Such platforms, which I will call “social platforms” here, are thus in practice a central plank of the political public sphere given their growing role in supplying so many people with news.

The role that social platforms play in public life has sparked a small avalanche of worries even before the extraordinary entanglement of big tech’s corporate leadership with the partisan policy projects of the second Trump administration.⁵ The worries are diverse. Many commentators have aired concerns about the effects of social-platform use on mental health and sexual mores,⁶ or the extent of economic exploitation in this platform-based gig economy.⁷ These important cultural and economic worries are somewhat distinct from worries surrounding the political functions of the digital public sphere. It is the latter’s pathologies, and only those problems, that this essay—as well as the broader symposium on listeners’ rights in which it participates—concentrates on.

Even within the narrower compass of political speech defined in strict and demotic terms, the role of social platforms raises several distinct concerns. I take up three common lines of criticism and concern here. A first line of critique focuses on these platforms’ alleged harmful effects on a broad set of user beliefs and dispositions thought to be needful for democratic life. Social platforms, it is said, pull apart the electorate by feeding them fake news, fostering filter bubbles, and foreclosing dialogue—to the point where democratic dysfunction drives the nation toward a violent precipice. This first argument concerns platforms’ effects on the public at large.

A second common line of argument, by contrast, makes no claim about the median social platform user. It instead focuses on the “radicaliz[ing]” effect of social media engagement on a small handful of users at the ideological margin.⁸ If even these few users resort to violence to advance their views, it might be said that social media has had a deadly effect.⁹ This is an argument not about social platforms’ effects on the mass of users, but upon the behavior of a small tail of participants in the online world.

Yet a third sort of argument against social platforms does not sound in a strictly consequentialist register. It does not lean, that is, on any empirical evidence as to how users are changed by their engagement. Rather, it is a moral argument that picks out objectionable features of the relationship between platforms and their users. This plainly asymmetrical arrangement, it is said, allows invidious manipulation, exploitation, or even a species of domination. Even if users’ behaviors do not change, these characteristics of the platform-user relationship are said to be insalubrious. Especially given the role that algorithmic design plays in shaping users’ online experiences, it is argued, a morally problematic imbalance emerges between ordinary people and the companies that manage social platforms. In the limited case, in which there are few potential sources of information and in which those sources are controlled and even manipulated by their owners (usually men of a certain age who are disdainful of civility and truthfulness norms), an acute concern about domination arises.

If one accepts one of these arguments (and I will try to offer both their best versions and to explore their weaknesses in what follows), then there is some reason to think closely about the way social platforms are governed, and to look for regulatory interventions. Such governance might be supplied by platforms’ own endogenous rules, which are usually embodied in their contractual terms of service or other internal procedures (such as mechanisms to dispute a take-down or deplatforming decision). Alternatively, governance could be supplied by exogenous legislation or regulation promulgated by a state. Private governance and legal regulation, of course, are potential substitutes. They can both be used to achieve the same policy goals. But how? What should such governance efforts, whether private or public, aspire to? And which policy levers are available to achieve it?

Where a platform employs algorithmic tools to shape users’ experience by determining what they see, the range of potential interventions will be especially large. This is a result of the complexity of common computational architectures today. There are many ways to craft the algorithms on which many platforms run.¹⁰ And there are many technical choices about which instruments to use, how to calibrate them, and what parameter (engagement? a subset of engagement?) to optimize. Many of these decision points offer opportunities for unavoidably normative choices about the purpose and intended effects of social platforms. Resolving those choices in turn requires some account of what it means exactly to talk about a normatively desirable social platform: That is, what should a social platform do? And for whom?

Such questions takes on greater weight given (1) recent regulatory moves by American states to control platforms’ content moderation decisions;¹¹ (2) a recent Supreme Court decision responding to those efforts;¹² and (3) the European Union’s Digital Services Act, a statute that takes yet a different and more indirect tack in modulating platform design and its ensuing costs.¹³ Or consider a 2025 U.S. Supreme Court decision, rendered on a tightly expedited schedule, to uphold federal legislation banning TikTok.¹⁴ The decision makes the remarkable suggestion that legislative control over social platforms—exercised by reshaping (or cutting off) the ordinary market from corporate control (for example, by forcing or by restricting a sale)—raises only weak First Amendment concerns. Applied broadly, such an exception from close constitutional scrutiny might allow broad state control over social platforms.

My main aim in this essay is to offer a new and fruitful analytic lens for thinking about these problems as questions of democratic institutional design. This is a way of approaching the problem of institutional design, not a set of prescriptions for how to do such design. I do so by pointing to a model of a desirable platform, and then asking how we can move toward that aspiration, and how much movement might be impeded or even thwarted. My aspirational model is not conjured out of the ether; rather, I take inspiration from an idea found in the scholarly literatures in political science and sociology that evaluates pathways of economic development. The idea upon which I draw is that development policy should aim to seed “islands of integrity” into patrimonial or nepotistic state structures as a way of building foundations for a more robust—and hence public-regarding—state apparatus.¹⁵ This literature focuses on the question of the state’s seeds and nurtures zones (or those of another interested party, such as a private foundation or an international organization) where public-regarding norms, not self-regarding or selfish motives, dominate as a means of generating public goods.

By analogy to the examples of effective public administration discussed in this literature, I will suggest here that we should think about public-regarding platforms as “islands of algorithmic integrity” that advance epistemic and deliberative public goods with due regard to the potential for either exploitation or manipulation inherent in the use of sophisticated computational tools. With that threshold understanding in mind, we should then focus on how to achieve that specific, affirmative model—and not simply on how to avoid narrowly-defined and specific platform-related

harms. An affirmative ideal, that is, provides a baseline against which potential reform proposals can be evaluated.¹⁶

To be very clear up front, this approach has limitations. It draws on the “island of integrity” literature here as a general source for inspiration, instead of a source for models that can be directly transposed. I do not think that there is any mechanical way of taking the lessons of development studies and applying them to the quite different virtual environment of social platforms. To the extent lessons emerge, they are at a high level of abstraction. Still, studies of islands of bureaucratic integrity in the wild can nevertheless offer a useful set of analogies: they point toward the possibility of parallel formations in the online world. They also help us see that there are already significant web-based entities that exemplify certain ideals of algorithmic integrity in practice because they hew to the general lessons falling out of the islands of integrity literature. These studies can illuminate how a more democratically fruitful digital public sphere might begin to be built given our present situation, even if they cannot offer a full blueprint of its ultimate design.

It is worth noting that my analytic approach here rests on an important and controversial assumption. That is, I help myself to the premise that reform of the digital public sphere can proceed first by the cultivation of small-scale sites of healthy democratic engagement and that these can be scaled up. But this assumption may not be feasible. It may instead be necessary to start with a “big bang”: a dramatic and comprehensive sweep of extant arrangements followed by a completely new architecture of digital space. If, for example, you thought that the problem of social platforms began and ended in their concentrated ownership in the hands of a few bad-spirited people, then the creation of new, more democratic platforms would not necessarily lead to a comprehensive solution. Given disagreement about the basic diagnosis of social platforms’ malady, it is hard to know which of these approaches is more sensible. Therefore, there is some value to exploring a piecemeal reform approach of the sort illuminated here. But that does not rule out the thought that a more robust “big bang” approach is in truth needed.

Part I of this essay begins with a brief survey of the main normative (consequentialist and deontic) critiques that are commonly lodged against social platforms, focusing on the three listed above. In Part II, I introduce the “islands of integrity” lens—briefly summarizing relevant sociological and political science literature—as a means to directly think about social platform reforms. My aim in so doing is to provide a litmus test for thinking about social platform reform in the round. With that lens in hand, Part III critically considers the regulatory strategies pursued by the American states and the European Union to date. I suggest some reasons to worry that these are unlikely to advance islands of algorithmic integrity. I close by reflecting on some alternative regulatory tactics that might move us quicker toward that goal.

I. The Case(s) Against Social Platforms

What is a social platform? Do such all platforms work in the same way and raise the same kind of normative objections? Or are objections to platforms better understood as training on a subset of cases or applications? This Part sets some groundwork for answering these questions by defining the object of my inquiries and by offering some technical details about different kinds of platforms. I then taxonomize the three different objections that are commonly lodged against social platforms as they currently operate.

A. Defining Social Platforms and Their Algorithms

A “platform” is “a discrete and dynamic arrangement defined by a particular combination of socio-technical and capitalist business practices.”¹⁷ A subset of platforms are understood by their users as distinctively “social” rather than “commercial” insofar they provide a space for interpersonal interaction, intercalated with other activities such as “reading political news, watching media events, and browsing fashion lines.”¹⁸ The leading “social platforms,” as I shall call them here, are Facebook, X, Instagram, and TikTok.¹⁹

Not all social platforms propagate content in the same way. There are two dominant kinds of system architecture. The first is the social network, where users see posts by other users who they follow (or subscribe to) as well as posts those users chose to amplify.²⁰ When Facebook and Twitter allowed users to reshare or retweet posts, they enabled the emergence of networks of this sort.²¹ Here, what one sees depends on who one “knows.” Interconnected webs of users on a network can experience “information cascades” as information flows rapidly across the system.²² This is known colloquially as “going viral.” The possibility of virality depends not just on platform design but also on users’ behaviors. But, in practice a very small number of posts go viral on social networks.²³ Attention is a scarce commodity. We cannot and do not absorb most of what’s posted online. Our inability to absorb much means that it is only possible for a few items to achieve virality.

The second possible architecture is centered around an algorithm (or, more accurately, algorithms). On platforms of this sort, the stream of data observed by a user is largely shaped by a suite of complex algorithms, which are computational decisional tools that proceed through a series of steps to solve a problem. These algorithms, in the aggregate, are designed with certain goals in mind, such as maximizing the time users spend on the platform.²⁴ TikTok’s “For You Page,” Google Discover, and YouTube all rely at least in part on algorithms.²⁵

In practice, what is for the sake of simplicity called “the algorithm” can be disaggregated into several different design elements, each of which is in truth a distinct algorithm or digital artifact. These include (1) the “surfaces of exposure” (that is, the visual interface encountered by users); (2) a primary ranking model (often a two-stage recommender system that combs through and filters potential posts); (3) peripheral models, which rank content that appears around the main surface of exposure (for example, ads); and (4) auxiliary models (for example, content moderation for illegal materials or posts that violate terms of service).²⁶ For the sake of simplicity, I will refer to them together only as “the algorithm,” but it is worth keeping in mind that this is a simplification, and in fact there are multiple instruments at stake.

Algorithm design implicates many choices. At the top level, for example, an algorithmic model can be braided into a network model or integrated into a subscription-service model.²⁷ At a more granular level, algorithms can be designed to optimize a broad range of varied parameters. These range from “meaningful social interactions” (Facebook’s measure at one point in time) to user’s watch time (YouTube’s measure) to a combination of liking, commenting, and watching frequencies (TikTok’s measure).²⁸ The choice of parameter to optimize is important. Most common parameters quantify some element of users’ engagement with the platform, but they do so in different ways. Engagement measures are relevant from the platforms’ perspectives given their economic reliance on the revenue from advertising displayed to users.²⁹ In theory, more engagement means more advertising revenue. But engagement on social platforms is surprisingly sparse. Somewhere between only one percent and five percent of posts on most social platforms generate any engagement at all.³⁰ And the movement from engagement to advertising is rarer still: most targeted online advertising is simply “ignored.”³¹

B. Consequentialist Critiques of Social Platforms

There are, as I read the literature, three clusters of normative concerns raised by social platforms that merit consideration as the most important and common criticisms made of those technologies.³² Two are consequentialist, in the sense of training on allegedly undesirable effects of social platforms. Of course, such arguments need some means of evaluating downstream effects as either desirable or undesirable. In practice, they rest on some account of democracy as an attractive—even ideal—political order. (Note that as is often the case in legal scholarship, the precise kind of “democracy” at work in these critiques is not always fully specified. This lack of specification is a gap that will prove relevant in the analysis that follows.)³³ The other cluster is deontic, in the sense of picking out intrinsically unattractive qualities of social platforms. These accounts do not rely on a causal claim about the effects of social platforms; they instead assert the prima facie unacceptability of platforms in themselves.

Let’s begin with the two consequentialist arguments and then move on to the deontic critique.

A first view widely held in both the academic and non-academic public spheres is that social platforms cause political dysfunction in a democracy because of their effects on the dispositions and beliefs of the general public.³⁴ Using social platforms, this argument goes, drives (1) a dynamic of “affective polarization” (negative emotional attitudes towards members of opposition parties), or (2) traps us in “echo chambers” or filter bubbles that are characterized by limited, biased information.³⁵ Social media users are also said to be exposed to “fake news,” which are “fabricated information that mimics news media content in form but not in organizational process or intent.”³⁶ High levels of exposure are said to be driven by algorithmic amplification.³⁷ Recent advances in deep-fake-creation tools have further spurred worries about an “information apocalypse” that destroys “public trust in information and the media.”³⁸ Platforms, in this view, foster a world in which citizens lack a shared reservoir of mutual tolerance and factual beliefs about the world. Such deficiencies are said to render meaningful political debate on social platforms challenging—perhaps even impossible. As a result of these changes in peoples’ dispositions, the possibility of democratic life moves out of reach.

These arguments hence assume that democratic life requires the prevalence of certain attitudes and beliefs in order to be durably sustained (an assumption that may or may not be empirically justified). Another way in which these concerns can concretely be understood is to view them in light of the rise of anti-system parties,³⁹ which are characterized by their limited regard for democratic norms. Platforms might facilitate the growth of such anti-system candidates who disrupt or even undermine democratic norms such as broad trust in the state and in co-citizens. Through this indirect path, platforms have a detrimental effect on democracy’s prospects.

There are surprisingly few empirical studies that support the existence of a robust causal connection between social platforms and democratically necessary trust.⁴⁰ Yet some evidence for it can be found in the behaviors and beliefs of significant political actors. President Donald Trump, for example, declared in November 2016 that Facebook and Twitter had “helped him win” the 2016 U.S. presidential election.⁴¹ Since 2020, conservative donors such as the Bradley Impact Fund and the Conservative Partnership Fund have contributed millions to Republican-aligned groups combating effects to “take a tougher line against misinformation online.”⁴² Such significant financial investments by important political actors, beyond merely cheap talk, suggest that social platforms do have predictable partisan effects for candidates and parties that have an arguable anti-systemic orientation.⁴³

On the other hand, well-designed empirical studies have cast doubt on the negative, large-“N” effects of social platforms.⁴⁴ Four studies are illustrative. A first well-designed randomized experiment, which tested the effect of platform deactivation for several weeks before the 2020 election, found no statistically significant effects of platform exposure on affective polarization, issue polarization, or vote choice.⁴⁵ A second random experiment focused on the difference between Facebook’s default algorithms and a reverse-chronological feed. Again, the study found no effect on affective polarization, issue polarization, or political knowledge after switching from a network-driven feed to an algorithmically-driven feed, even though the use of a reverse chronological feed increased the amount of “untrustworthy” content seen.⁴⁶ This null finding from a study of opting into algorithmic content propagation has been replicated in a separate study of YouTube.⁴⁷

Finally, an empirical inquiry into exposure to fake news found only a very small positive effect on the vote share of populist candidates in European elections.⁴⁸ Another study of 1,500 users in each of three countries (France, the United Kingdom, and the United States) identified no correlation between social platform use and more extreme right-wing views; indeed, in the United States, they found a negative correlation.⁴⁹ The authors concluded that their “findings tend to exonerate the Internet generally and social media in particular, at least with respect to right-wing populism.”⁵⁰ Finally, a 2017 study found that President Trump erred when he claimed that Twitter and X helped him in the 2016 election; again, that study found a negative correlation between more extreme right-wing views and social platform usage.⁵¹

Summarizing the available research (including these studies) in a June 2024 issue of Nature, a team of respected scholars concluded that “exposure to misinformation is low as a percentage of people’s information diets” and further “the existence of large algorithmic effects on people’s information diets and attitudes has not yet been established.”⁵² The Nature team warned that the extent to which social platforms undermine political knowledge depends on the availability of other news sources. Where countries “lack reliable mainstream news outlets,” their negative knowledge-related spillovers may be greater.⁵³ I do not pursue that suggestion here, since it invites a bifurcated analysis that separately considers different national jurisdictions, depending on the robustness of their non-digital media ecosystems. What follows should be taken as parochially relevant to North American and European democracies (at least for now) but not the larger world beyond that.

A second view of social platforms’ harms identifies not its spillovers at scale, but rather its effects on certain narrow slices of the population—in particular, those at the tails of the ideological distribution. The intuition here is that engagement with social platforms may not change the dispositions or beliefs of most people, but there is a small subset of individuals who adopt dramatically divergent beliefs (and even behaviors) as consequences of their platform use. “Tail effects” of this sort may not be significant for democratic life under some circumstances, but of particular relevance, there is some evidence of increased support for political violence among Americans.⁵⁴ Extremism at the tails in this context and about this sentiment may have profound consequences. At a moment when President Trump has (twice) faced near-assassination during the 2024 presidential election cycle, and considering how his supporters previously precipitated a deadly confrontation at a 2021 Joint Session of Congress meant to count Electoral College votes, it seems prudent to reckon with the risk that radicalized individuals—even if few in number—may be able to inflict disproportionate harms on institutions that are necessary for core democratic political processes.

This more narrowly gauged claim stands on firmer empirical ground than the critiques of social platforms’ large-“N” effects discussed above. A 2024 study of fake news’ circulation on Twitter found that 0.3 percent of users account for four-fifths of its fake news volume.⁵⁵ These “supersharers,” who tended to be older, female, and Republican, in turn reached a “sizable 5.2% of registered voters on the platform.”⁵⁶ Note that this is not necessarily the population one would expect to engage in political violence. A different study published around the same time also found “asymmetric . . . political news segregation” with “far more homogenously conservative domains and URLs circulating on Facebook” and “a far larger share” of fake news on the political right.⁵⁷

Such findings are consistent with wider-angle studies of partisan polarization, which find different microfoundations on the political left and right.⁵⁸ The Nature team mentioned above hence concluded that exposure to misinformation is “concentrated among a small minority.”⁵⁹ Those who consume false or otherwise potentially harmful content are already attuned to such information and actively seek such content out.⁶⁰ Platforms, however, do not release “tail exposure metrics” that could help quantify the risk of harm from such online interactions.⁶¹ As a result, it is hard to know how serious the problem may be.

What of the concern that social platforms conduce to “filter bubbles” that constrain the range of information sources users can access in problematic ways?⁶² Once again, the evidence is at best inconclusive. A 2016 study found that social homogeneity of users predicted the emergence of echo chambers characterized by asymmetrical patterns of news sharing.⁶³ At the same time, the study offered no empirical evidence about the extent or effects of filter bubbles “in the wild,” so to speak. A 2021 review identified divergent results in studies surveying human users of social platforms or digital trace data; yet, it identified only a handful of studies substantiating the concern.⁶⁴ A 2022 meta-study found that “most people have relatively diverse media diets,” and only “small minorities, often only a few percent, exclusively get news from partisan sources.”⁶⁵ Again, the empirical foundations of the normative worry here seem shaky.

Even if the evidence of filter bubbles existing was more robust, filter bubbles’ substantiated existence would not necessarily be cause for concern. Concern about filter bubbles focuses on the asymmetric character of the information voters consume; this then assumes that there is a counterfactual condition under which the voter might receive a “balanced” diet of information. But what does it mean to say that a person’s news inputs are balanced or symmetrical? Does it require equal shares of data that support Republican and Democratic talking points? What if one of those parties is more likely than the other to lean on false empirical claims? Should a balanced informational diet reflect or discount for such a lean? How are the problems of misinformation or distorted information to be addressed? Is it part of a balanced informational diet to receive a certain amount of “fake news”? These questions admit of no easy answers. Rather, they suggest that the concern with filter bubbles trades on a notion of balance that is hard to cash out in practice without difficult anterior ideological and political choices.

In brief, the available empirics suggest that consequentialist critiques of social platforms are better focused on tail effects instead of the way platform engagement changes the median user or the mass of users. It is also worth underscoring a point that is somewhat obscured by the bottom-line results of these studies but implicit in what I have just set out. That is, the tail effects of social platforms arise from a complex and unpredictable mesh of interactions between technical design decisions and users’ decisions. The external political environment hence shapes platforms’ spillover effects, and when that environment is more polarized and more prone to panics or even violence, it seems likely that the tail risks of social platforms would correspondingly rise. When, by contrast, there are a plethora of reliable non-digital sources which are accurate and easily accessible, the threat to democratic life from social platforms may well be far less acute.

C. Deontic Critiques of Social Platforms

Critiques of social platforms do not need to rest on evidence of their consequences. It is also possible to pick out features of the relationship between platforms and users as morally problematic even in the absence of any harm arising. Two particular strands of such “deontic” critique can be traced in existing literature.

First, social platforms (among other entities) gather data about their users and then use that data to target advertisements to those same users. For many, this circular pattern of data extraction and deployment constitutes a morally problematic exploitation. Such exploitation occurs when “one party to an ostensibly voluntary agreement intentionally takes advantage of a relevant and significant asymmetry of knowledge, power, or resources” to offer otherwise unacceptable contracting terms.⁶⁶

Shoshana Zuboff, who is perhaps the leading expositor of this view, argues that platforms have “scraped, torn, and taken for another century’s market project” the very stuff of “human nature.”⁶⁷ She condemns the “rendition” and “dispossession of human experience” through “datafication.”⁶⁸ Zuboff’s critique of platform exploitation is nested in a broader set of concerns about the presently hegemonic form of “informational” or “financial” capitalism. Reviewing Zuboff’s book, Amy Kapczynski thus asserts that “informational capitalism brings a threat not merely to our individual subjectivities but to our ability to self-govern.”⁶⁹ Similarly, danah boyd characterizes private firms’ use of digital power as a malign manifestation of “late-stage capitalism . . . driven by financialization.”⁷⁰ And as Katharina Pistor puts it, “[t]he real threat that emanates from Big Tech using big data is not just market dominance . . . [but] the power to transform free contracting and markets into a controlled space that gives a huge advantage to sellers over buyers.”⁷¹ The structure of financial or quasi-financial transactions on social platforms, in this view, conduces systemically to users’ exploitation.

In an earlier piece, I have expressed sharp skepticism elsewhere about the empirical and normative arguments offered by Zuboff and Kapczynski.⁷² Their concerns about exploitation seem to trade on imprecise and potentially misleading analogies to more familiar and normatively troubling forms of economic exploitation, despite meaningful differences in structure and immediate effect. Indeed, both analogies fail to take those differences seriously. More generally, their arguments borrow a suite of concerns associated with the larger structures of economic life labeled “neoliberalism,” which have developed since the 1970s. Such critiques of neoliberalism, however, concern aspects of economic life that have little to do with social platforms (for example, deregulation and financialization). One can have neoliberalism with or without social platforms. I see little analytic gain in combining these very different lines of argument respecting quite distinct targets, and I see no reason to invite confusion by mushing together distinct phenomena to achieve guilt-by-association more generally.

Second, concern about exploitation overlaps with a distinct worry about non-domination. Claire Benn and Seth Lazar capture this possibility in their argument that social platforms might compromise an intrinsic, non-instrumental “value of living in societies that are free and equal.”⁷³ They argue that the public is necessarily ignorant about the “tech companies’ control of the means of prediction” and so have “no viable way of legitimating these new power relations.”⁷⁴ But the empirical premise of this argument—widespread public ignorance about predictive tools—seems shaky: As the empirical studies of fake news and political distortion show, there is publicly available knowledge about many salient effects of social platforms. To the extent that the public misconstrues those effects, Benn and Lazar’s argument likely overestimates their magnitude.⁷⁵ I hardly think these critiques are secret.

Still, I think Benn and Lazar are on to something useful when they identify the fact of corporate control as a morally salient one. Social platforms stand in an asymmetrical relation to the general public because of (1) knowledge asymmetries enabled by the corporate form; (2) collective action problems implicit in the one-to-many relation of firms to consumers; and (3) ideological effects (for example, false beliefs in the necessity of unregulated digital markets for economic growth). As a consequence of these dynamics, social platforms exercise a certain kind of unilateral power over the public. Such power might be especially worrying if it is concentrated in the hands of a limited number of people—and if these people have close connections to those in high state office (with the Musk/Trump relationship offering an obvious, highly salient example). This slate of worries comes sharply into play whenever platforms comprise an important part of the democratic public sphere. Under these conditions, Benn and Lazar point out that platforms ought not to merely prevent negative consequences for democratic politics; they must also ensure “that content promotion is regulated by epistemic ideals.”⁷⁶ This entails, in their view, a measure of “epistemic paternalism.”⁷⁷ It rests on platforms’ unilateral, and effectively unconstrained, judgments about interface and algorithmic design.

This deontic argument can also be stated in the terms of Philip Pettit’s influential theory of republican freedom. On Pettit’s account, an individual wields dominating power over another if the former has the capacity to interfere in certain choices of the latter on an arbitrary basis.⁷⁸ Pettit asserts that this arbitrariness condition is satisfied if an agent’s actions are subject only to the arbitrium—the will or judgment—of the agent, and when the interfering agent is not “forced to track the interests and ideas of the person suffering the interference.”⁷⁹ For example, a person ranked by law as a slave is just as unfree even if their master always acts with their interests in mind. Even when an arbitrary legal relationship is exercised in a beneficent fashion with the interest of the weaker party in mind, Pettit suggests that there is a displacement of the subject’s “involvement, leaving [them] subject to relatively predictable and perhaps even beneficial forms of power that nevertheless ‘stifle’ and ‘stultify.’ ”⁸⁰

Yasmin Dawood has fruitfully deployed Pettit’s framework for thinking about the abuse of public power in democratic contexts.⁸¹ Her conceptual framing, moreover, could be extended to private actors such as social platforms without too much difficulty. For instance, one might view the exercise of extensive control over the informational environment online as a species of domination, whether or not it was exercised in a malign or a paternalistic direction. That idea might be rendered more precise by drawing on work by Moritz Hardt, Meena Jagadeesan, and Celestine Mendler-Dünner that defines the “performative power” of an algorithmic instrument in terms of “how much participants change in response to actions by the platform, such as updating a predictive model” as a numerical parameter.⁸² This concept of “performative power” usefully captures the way that platforms “steer” populations.⁸³ As such, it offers a way of understanding and measuring “domination” in social platforms more precisely.

In setting out these two kinds of deontic critiques of social platforms, I thus suggest that there are plausible grounds for worry about social platforms, even absent robust empirical findings of spillovers onto users’ beliefs and dispositions. I recognize that both the exploitation and the domination critiques rest on further moral premises, which I have neither spelled out in full nor tried to substantiate. But I spell out both deontic arguments here to show readers the minimally plausible non-consequentialist grounds for concern about the structure and operation of social platforms and to allow readers to make their own judgments.

D. Making a Better Case Against Social Platforms

Social platforms have become scapegoats of sorts for many of the ills that democratic polities are now experiencing. But the available evidence suggests that many of these critiques miss the mark. For many people, platforms simply do not play a very large or dominant epistemic role (although this may well change in the near future). They also seem not to have the polarizing and epistemically distorting effects many bemoan.

That is not to say, however, that there is no reason for concern. Consequentialist worries about the behavior of users on the tails of the ideological distribution, as well as deontic worries about exploitation or domination, point toward the need for reforming measures. Of course, these arguments might not all point in the same direction in terms of practical change. But reforms that render platforms more responsive and responsible to epistemically grounded truths and the interests of all their users (as well as interests of the general public at large) are plausibly understood to respond to all the salient critiques discussed above.

II. Islands of Integrity—Real and Digital Examples

One way of thinking about how existing social platforms might be reformed is to identify an aspirational end-state, or a model, of how they might ideally work. With an understanding of the best version of a social platform in view, it may be easier to evaluate extant reform strategies and to propose new ones. This inquiry might proceed at the retail level—focusing on what an “ideal” or a “better” platform might look like—or at a general level—asking how the digital ecosystem overall should be designed. With the first of these paths in mind, I introduce in this Part a conceptual framework for thinking about “islands of integrity” developed in the sociological and political science studies of development. While that literature has not yielded any simple or single formula for reaching that aspiration, it still offers a useful lens for starting to think about well-functioning social platforms. Or so I hope to show in what follows.

A. Building Islands of Integrity in the Real World

In recent decades, concern about the legality and the quality of governance has shaped the agenda of international development bodies such as the World Bank.⁸⁴ One of the strategies identified to enhance the quality of public administration centers the idea of “islands of integrity” or “pockets of effectiveness” in sociopolitical environments that are “otherwise dominated by patrimonialism, corruption, and bureaucratic dysfunction.”⁸⁵ An island of integrity has been defined as an entity or unit (generally of government) that is “reasonably effective in carrying out [its] functions and in serving some conception of the public good, despite operating in an environment in which most agencies are ineffective and subject to serious predation . . . .”⁸⁶ The normative intuition is that it is possible to seed islands of integrity, despite pervasive corruption, as a starting point for more large-scale reforms.

There are by now a wide variety of case studies on islands of integrity. Monica Prasad, for example, points to the recently stood-up Indian Institutes of Technology (“IITs”), an archipelago of meritocratic technology-focused colleges across the subcontinent, as an instance where an educational mission is successfully pursued against “a context of patrimonialism and corruption.”⁸⁷ IITs’ mission is preserved and protected from distortion through the use of selection strategies of “meritocratic decoupling” that sort both students and teachers based on academic merit, alongside efforts to show how the institution benefited those who were excluded.⁸⁸

In a different case study, Eliška Drápalová and Fabrizio Di Mascio identify a pair of municipalities in Spain as “islands of integrity.”⁸⁹ They contend that the key move in creating them was the fashioning of a “fiduciary relationship between mayors and city managers,” which allowed for the development of a bureaucratic structure shaped by professional (rather than patrimonial) norms.⁹⁰ City managers, they find, offer “accountability and responsiveness” to elected leaders without compromising the integrity of service-oriented institutions.⁹¹ Similarly, Michael Roll maps the emergence in Nigeria of well-run agencies managing food and drug regulation on the one hand, and human trafficking on the other, to demonstrate that islands of integrity can emerge even under very difficult circumstances given the right leadership.⁹²

Most, but not all, of these case studies on islands of integrity concern real-world public administration, often at a local level.⁹³ The generalizations drawn by the literature are concededly fragile: The heterogeneity of cultural, political, and institutional context makes inference instable, at least at a useful level of granularity.⁹⁴ Still, a couple of regularities do tentatively emerge from a review of the available case studies in the development literature.

Crudely stated, the “islands of integrity” literature underscores the importance of institutional means and leadership motives for resisting patrimonial or corrupt political cultures. First, an island of integrity needs to internalize control over its own workings in order to “create a culture of meritocracy and commitment to the organization’s mission.”⁹⁵ Underpinning this culture, it seems, must be a clear understanding of the public goods that the agency or body is supposed to produce. The truism that leadership is key seems to hold particularly strongly.⁹⁶ Autonomy over personnel choice is also crucial in order to maintain that culture.⁹⁷

Second, there is a consistent institutional need for the creation of tools to resist demands from powerful external actors who try to capture a body for their immediate political or economic gains, which are unrelated to the public-regarding goals of the institution.⁹⁸ Tools by which to mitigate such threats to institutional autonomy vary. Indian universities, Prasad found, tout the local jobs they create in cleaning and maintenance—even as they maintain the separation of student and faculty selection from local pressures—as a way of deflecting local politicos.⁹⁹ Spanish city managers, Drápalová and Di Mascio explain, promise improvements in top-line municipal services to mayors who threaten their autonomy.¹⁰⁰ In effect, reform is purchased in both cases by strategic payoffs to those who threaten its progress.

Just as it is important to work out how to build public-regarding institutional spaces in the real world, so too is it important to identify how to create such spaces in the virtual, digitally mediated world. Just as the bodies in India, Spain, and Nigeria need to have motive and means to keep the corroding forces of public sphere at bay, so too does a social platform that strives to be an island of integrity need leadership, internal culture, and means to create a non-exploitative, non-dominating structure while managing tail risk better than existing platforms. Taken as metaphor, therefore, “islands of integrity” offer a template for the desirable end goal of social platform reform as well as some modest clues about how to get there. Still, it is important not to make too much of this metaphor. The claim that the “islands of integrity” literature can be an inspiration for social platform reform is, at bottom, an argument from analogy, and one that needs to be tested carefully through the application of that analogy.

B. Digital Islands of Integrity: Two Examples

The aforementioned analogy gains force when one realizes that there are already examples of digital islands of integrity online. The two most prominent examples are Wikipedia and the British Broadcasting Company (“BBC”). To be clear, neither is a quintessential social platform as I have used that term here. Nor do they operate at the same scale as X or Instagram. But I offer a brief discussion of both by way of proof of concept.

Wikipedia emerged from the wreckage of an attempted for-profit online encyclopedia called Nupedia.¹⁰¹ The latter’s assets (for example, domain names, copyrights, and servers) were subsequently placed in an independent, charitable organization, the Wikimedia Foundation (“WMF”).¹⁰² At first, corporate governance “emerged” organically from the efforts of those building the site, rather than being imposed from above.¹⁰³ A group of founders then “transformed their charismatic community into a bureaucratic structure” in which “power was diffused and distributed” across “a sprawling bureaucracy with a wide range of formal positions” in response to the perceived mission-related needs of the organization.¹⁰⁴ The organization’s trajectory has also been characterized by moments of greater centralization. For example, in the early 2010s, Wikipedia’s CEO led an effort to be “more inclusive and more open,” somewhat to the chagrin of the then-contributors.¹⁰⁵ That is, Wikipedia’s governance history centers on a choice of corporate form that insulates leadership from external profit-related pressures, a selection of strong leadership, and an exercise of leadership to broaden and empower the organization’s constituencies (potentially mitigating criticism of the organization) to generate a certain kind of “corporate culture.”¹⁰⁶

Even more directly relevant is the web presence of the BBC. The BBC produces thousands of new pieces of content each day for dissemination over a range of sites, such as BBC News, BBC Sport, BBC Sounds, BBC iPlayer, and World Service.¹⁰⁷ The corporation’s charter defines its mission as serving all audiences by providing “impartial, high-quality and distinctive output and services which inform, educate and entertain.”¹⁰⁸ Like Wikipedia, the BBC is organized into a corporate form that is relatively impermeable by law to commercial pressures. To advance its charter goals, the BBC uses machine-learning recommender algorithms created by multi-disciplinary teams of data scientists, editors, and product managers.¹⁰⁹ Once a recommender system has been built,¹¹⁰ editorial staff can offer “continuous feedback” on the design and operation of recommendatory systems to identify legal compliance questions and to ensure “BBC values” are advanced.¹¹¹

Available accounts of this process—while perhaps a touch self-serving because they are written by insiders—suggest that the organization strives to cultivate a distinctive cultural identity. It then leverages that identity as a means of advancing its values via algorithmic design. Specifically, an important part of this recommender design process focuses on empowering users to make their own choices and to avoid undesirable (from the service’s perspective) behaviors. The BBC’s recommender tools are designed to permit personalization, albeit only to the extent that doing so can “coexist with the BBC’s mission and public service purposes.”¹¹² An insider informant speaking anonymously reported that the BBC understands itself as “as ‘morally obliged’ to provide their users with the possibility of tweaking their recommendations.”¹¹³ In the same study, the employee of an unnamed European public broadcaster that managed a recommender system reported that their system proactively identified “users who consume narrow and one-sided media content and recommend[ed to] them more diverse content.”¹¹⁴ That is, the system was designed to anticipate and mitigate, to an extent, the possibility of extremism at the tails of the user distribution, while also preserving users’ influence over the content of their feeds. This is in stark contrast to systems that are designed to maximize engagement under conditions in which predictability entails driving users to more extreme (and even dangerous) content.

I do not want to strain the parallels between the “islands of integrity” literature and these digital examples too much. Both of the latter, nevertheless, point to ways in which the means and the motives to sustain an “island of integrity” can be imagined in an online world. Both services are, for example, explicitly oriented toward a public service mission in terms of leadership. They both also opted for corporate forms that allow for some protection against potentially compromising market forces. Both have systems in place to preserve and transit a valued internal culture, while buffering themselves somewhat against the risks of distorting external or internal pressure. Finally, both seem to have successfully cultivated persisting cultures of service to public-service goals by hard-wiring their cultures into bureaucratic structures or, alternatively, algorithmic designs.

III. The Governance of Social Platforms: Aspiring to Build Islands of Algorithmic Integrity

With the general idea of “islands of integrity” in hand, along with the specific proofs of concept described in Section II.B, it is possible to ask how certain social platforms might be reformed with an ideal of islands of algorithmic integrity in mind. That is, how might we move toward alternative platform designs and operations that address the normative concerns outlined in Part II? What kind of private governance might be imagined that mitigates exploitation and domination concerns, while addressing the tail risk of extremism as best as we can? Could legal regulation play a role? Again, it would be a mistake to frame these questions as mechanical applications of the “islands of integrity” literature. It is better to think of them as falling out of the same institutional design goal.

I approach this inquiry in two stages. I first begin by critiquing leading regulatory strategies observed in the American states and the European Union from an “islands-of-algorithmic-integrity” standpoint. At bottom, these critiques draw out ways in which those regulatory strategies take social platforms as potential sources of harm, largely without an account of the positive role platforms could play. Second, I draw together a number of possible tactics for public or private actors to help build islands of algorithmic integrity. My positive accounting here is concededly incomplete. My hope, however, is that this effort serves as initial evidence of the fruitfulness of an approach oriented toward the aspiration of islands of algorithmic integrity.

A. The Limits of Existing Platform Regulation Regimes

Since 2020, social platforms have become an object of regulatory attention on both sides of the Atlantic. Three main regulatory strategies can be observed. These take the form of new state regulations purportedly targeting “censorship,”¹¹⁵ fresh efforts to extend common law tort liabilities to social platforms, and a risk-based regulatory regime that has been promulgated by the European Union. Broadly speaking, all such legal intervention is premised on concern about platforms’ society-wide effects on listeners, although deontic concerns may play a role too. The tools seized for those tasks, however, have been inadequate. Their shortfall can be traced to the way in which they focus exclusively on platform harms (missing the importance of benefits), misconstrue those harms, and then fail to incentivize the formation of platforms with the means and the motive to mitigate documented harms while resisting exploitation or domination.

Regulating Ex Ante for Harms

The 2022 Digital Services Act (“DSA”) offers a first model of ex ante platform regulation. In important part, it trains on the potential for harms by recommender systems without any account of their positive effects. It contains a suite of new legal obligations: Article 25, for example, prohibits any digital platform design that “deceives or manipulates the recipients of their service or in a way that otherwise materially distorts or impairs the ability of the recipients of their service to make free and informed decisions.”¹¹⁶ Article 38 provides a right to opt out of non-personalized algorithms.¹¹⁷ Articles 14 and 26 set out some disclosure obligations on certain companies.¹¹⁸ Most importantly, for present purposes, Article 34 of the DSA requires “very large online platforms and . . . online search engines” to conduct an annual assessment of any systemic risks stemming from the design or functioning of their service, including negative effects on civic discourse, electoral processes, or fundamental rights.¹¹⁹

At first blush, the DSA seems oriented toward the creation of islands of algorithmic integrity. But there are reasons for being skeptical of conceptualizing the project this way. To begin with, the Article 38 opt-out is unlikely to be exercised by those “supersharers” at the tails of the ideological distribution who are most responsible for the diffusion of fake news.¹²⁰ Self-help remedies never avail those already fixated on harming themselves and others. Moreover, Article 34 risk assessments impose no clear affirmative command to build epistemically robust speech environments.¹²¹ In effect, the act offers no clear account of how social platforms could or should enable democratic life. Even more problematic, the DSA ultimately leans on platforms themselves to accurately document and remedy their own flaws. It does not seem excessively cynical to predict that profit-oriented companies will not be falling over themselves to flag the negative externalities of their own products in publicly available documents and flagellate themselves over how to remedy them. The DSA, in short, is promising as theory. But it may fall substantially short in practice.

Regulating Ex Ante for Balance

Both Florida and Texas have enacted statutes intended to limit platforms’ abilities to “deplatform” a person because of their violation of terms of service.¹²² The Florida statute, for example, prohibits platforms from “willfully deplatform[ing] a candidate for office who is known by the social media platform to be a candidate, beginning on the date of qualification and ending on the date of the election or the date the candidate ceases to be a candidate.”¹²³ In its July 2024 decision in Moody v. NetChoice, the U.S. Supreme Court cast doubt on the constitutionality of such measures.¹²⁴ While litigation is ongoing as this essay goes to press, it seems likely that the deplatforming elements of both statutes will not survive.

Relying on familiar doctrinal tools from the First Amendment toolkit, a majority of the Moody Court reached two conclusions that are relevant here. First, Justice Elena Kagan’s majority opinion explained that when an entity “provide[s] a forum for someone else’s views” and is thereby “engaged in its own expressive activity, which the mandated access would alter or disrupt,” a First Amendment interest is implicated.¹²⁵ Second, the Court held that the government has no constitutionally cognizable interest “in improving, or better balancing, the marketplace of ideas.”¹²⁶ This anti-distortion argument is familiar from the campaign finance context.¹²⁷ There, however, the argument is deployed generally by conservative justices to resist governmental efforts to advance an equality interest in political speech given its “dangerous[] and unacceptable” effects.¹²⁸ In the Florida and Texas cases, by contrast, the argument was listed against efforts by Republican state governments to enforce their understanding of balance on the platform-based speech. Such ideological valence thus flipped from campaign finance to platform regulation.

Independent of these familiar constitutional logics, there are more empirically grounded reasons to conclude that Florida’s and Texas’s efforts to mitigate platforms’ curatorial capacity are likely to undermine, rather than promote, the emergence of islands of algorithmic integrity. These reasons run parallel to Justice Kagan’s reasoning, but are distinctive in character.

The first reason is banal and empirical. The available research suggests that conservative voices in the United States are asymmetrically responsible for the dissemination of fake news.¹²⁹ To the extent that Florida and Texas leaned on a conception of “balance” in the speech environment, they did so by culpably ignoring the platforms’ interest in a generally reliable and trustworthy news environment. Enforcement of the Florida and Texas laws, to the contrary, seems likely to lead (all else being equal) to a decline in the quality of those platforms. That is to say, by a sort of Gresham’s law for political speech, the increasing proportion of misleading speech on a platform will tend to drive out those concerned with truthfulness. Such an effect creates a vicious circle of sorts, one that is absent from the campaign finance context.

This argument might be supplemented by a further observation. As I show below, there are a number of fairly obvious affirmative measures that private and public actors can take if they are truly concerned with the creation of islands of algorithmic integrity.¹³⁰ If we see a government failing to take these needful steps while affirmatively adopting counterproductive measures, there is some reason to doubt the integrity of its claim to be acting in the public interest. The islands of algorithmic integrity frame can be put to work here as a lens through which one may understand the gap between a state’s professed interests and its actual ambitions.¹³¹ If, as Justice Kagan once suggested in her academic role, the First Amendment doctrine is best understood as “a series of tools to flush out illicit motives and to invalidate actions infected with them” and a “kind of motive-hunting,”¹³² then the failure to pick low-hanging fruit while making elaborated and far-fetched claims about one’s integrity-related aims is a telling one. To the extent that it identifies some of those low-hanging fruit, the islands of algorithmic integrity grafts on comfortably to advance those goals.

A second reason to be skeptical of measures such as Florida’s and Texas’s is conceptual in character: balance-promoting measures of their ilk help themselves to the assumption that there is a neutral baseline that has been disturbed by a platform’s algorithm. But “the most common choice of baseline fundamentally depends on the state of some components of the system,” and assumes away the effect of past bias and amplification.¹³³ Accordingly, the Florida and Texas laws’ presupposition of a neutral baseline of undistorted speech is misplaced; it is better to instead focus on the structural qualities associated with islands of integrity. Where a government asserts an interest in “neutrality” or “fairness” in the context of social platforms, its arguments should be viewed as pro tanto dubious since it is striving to return to a status quo that, for technological reasons, is imaginary. A version of this baseline difficulty arises in the campaign finance context, albeit for different reasons.¹³⁴ It also lacks the sociotechnical foundation that is present in the platform context.

Tort Liability for Harmful Algorithmic Design

The Texas and Florida statutes impose ex ante controls on social platforms. An alternative regulatory strategy when it comes to platforms involves the ex poste use of tort liability to incentivize “better” (by some metric) behavior. Platforms benefit from a form of intermediate immunity from tort liability under Section 230 of the Communications Decency Act.¹³⁵ Section 230 immunity is likely wider than the immunity from liability available under the First Amendment,¹³⁶ although the scope of constitutionally permissible tort liability remains incompletely defined.¹³⁷

Recent lawsuits have tried to pierce Section 230 immunity from various angles. Some have tried to exploit federal statutory liability for aiding and abetting political violence.¹³⁸ Others lean on common law tort theories, but contend that Section 230 does not extend to suits that turn on platforms’ use of algorithmic controls to sequence and filter content. For example, in an August 2024 decision, a panel of the Third Circuit reversed a district court’s dismissal of a common law tort complaint against TikTok for its promotion of content that played a role in the death of a minor.¹³⁹ The circuit court held that Section 230 did not extend to a claim that TikTok’s “algorithm was defectively designed because it ‘recommended’ and ‘promoted’ the Blackout Challenge.”¹⁴⁰ The Blackout Challenge, said the panel, was “TikTok’s own expressive activity,” and as such fell outside Section 230’s scope.¹⁴¹ This construction of Section 230 has been severely criticized.¹⁴² Thus, it is far from clear how this ruling can be squared with the seemingly unambiguous Section 230 command that no platform can “be treated as the publisher or speaker of any information provided by another information content provider.”¹⁴³

Reflection on the prospect of tort liability that is delimited in this fashion and consistent with Section 230 (especially with the idea of “islands of algorithmic integrity” in mind) offers some further reasons for skepticism of the Third Circuit’s decision and the consequences of tort liability for algorithmic design more generally. For it is far from clear how algorithmic-design-based liability of the sort that the Third Circuit embraced can be cabined. Every algorithmic decision changes the overall mix of content on the platform. So, it is always the case that such decisions in some sense “cause” the appearance of objectionable content.¹⁴⁴ Indeed, one could argue that any mechanism imposed to limit one sort of harmful speech necessarily increases the likelihood that other sorts of speech (including other sorts of harmful speech) will feature prominently on the platform. For example, a decision to filter out speech endorsing political violence is (all else being equal) going to increase the volume of speech that is likely conducive to adolescent mental health problems. In this way, the Third Circuit’s decision (at least as written) has the practical effect of carving out all algorithmic content-moderation activity from Section 230’s scope. It is hard to imagine this concurs with Congress’s enacting intent.

Indeed, tort liability for algorithmic decision will inevitably push platforms to rely more on networks, rather than algorithms, as drivers of content. But the empirical evidence suggests that network-based platform designs are more, not less, likely to experience higher levels of fake news, and that they are less amenable to technical fixes.¹⁴⁵ Tort liability, at least as understood by the Third Circuit in the TikTok case, therefore pushes platforms away from socially desirable equilibria. Paradoxically, all else being equal, it is likely to increase, and not decrease, the volume of deeply troublesome material on platforms of the sort at issue in the Third Circuit TikTok case. More generally, it is again hard to see how liability for algorithmic design decisions, all else being equal, is socially desirable.

B. The Possible Vectors of Algorithmic Integrity

The fact that state and national governments opt for partial or unwise regulatory strategies does not mean that are no promising paths forward. To the contrary, the examples examined in Part II suggest a range of useful reforms. I outline three here briefly.

To begin with, the examples of Wikipedia and the BBC suggest that it may be possible to build at least small-scale islands of algorithmic integrity either in the private or the public sector. Those examples further suggest that whether state or private in character, such an island needs mechanisms to shield itself from the pressure to maximize profits. An entity that is exposed to the market for corporate control is unlikely to be able to resist commercial pressures for long.

Corporate form hence matters. For example, social platforms’ incentive to maximize engagement, and hence maximize advertising revenue, has been “critical” to driving the dissemination of radicalizing and hateful speech.¹⁴⁶ The transformation of Twitter to X after its purchase by Elon Musk, and the subsequent degradation and coarsening of discourse on the platform, offer an abject lesson in the perils of the unfettered free market for islands of algorithmic integrity.¹⁴⁷ The market for corporate control, which is often glossed over in light of the efficient capital markets hypothesis, is commonly viewed as an unproblematic good.

One of the main lessons of the islands of integrity literature, however, is the need for well-motivated leadership of the sort that has been described at Wikipedia and the BBC. It is hard to see how such motivation survives under the shadow of potential corporate takeover.

Second, islands of integrity require the right means (or tools), as well as the right motive. The use of algorithmic tools to curate a platform creates means in a way that reliance on network effects does not. It is thus a mistake to assume, as the Third Circuit seems to have done in the TikTok case, that an algorithmically managed platform is worse than a network based one. As Part I illustrated, the empirical evidence suggests that algorithmically managed platforms are generally not more polluted by misinformation than ones driven by users’ networks.¹⁴⁸ Quite the contrary.

Moreover, a social platform built around an algorithm may have tools to improve its epistemic environment that a network-based platform lacks. For instance, a 2023 study found that certain “algorithmic deamplification” interventions had the potential to “reduce[] engagement with misinformation by more than [fifty] percent.”¹⁴⁹ Another example of an instrument for epistemic integrity is, somewhat surprisingly, a feature of Facebook’s algorithm, which has baked in a preference for friends-and-family content that “appears to be an explicit attempt to fight the logic of engagement optimization.”¹⁵⁰

Third, there is a range of tailored reforms that precisely target ways in which social platforms stand in asymmetrical relations of exploitation and dominance to their users. As a very general first step, Luca Belli and Marlena Wisniak have proposed the use of “nutrition labels,” detailing key parameters of platform operation as a way of enabling better informed consumer choice between platforms.¹⁵¹ This kind of notice-based strategy, while plausible to implement, assumes a measure of user choice over which platform to use. At present, such choice is largely illusory because of the market dominance of a small number of platforms.¹⁵² It is also hard to see how consumers, particularly those already at the ideological margin, could be persuaded to make the right kind of choice. Inducing more competition, and hence more consumer choices, in social platforms would give notice-oriented measures more bite. Some work has been done on potential varieties of platform design,¹⁵³ but there remains ample room for inquiry and improvement. The basic point, though, is that some combination of increased competition and better consumer-facing notices would better allow certain users to select among different social platforms based on their own preferences—although it is hard to be confident that the right users, so to speak, will be those aided.

There are also steps that can be taken by a well-motivated platform manager. Within a platform, for example, the BBC’s strategy of promoting personalization could be adopted and redeployed in a number of ways. For instance, bots, or “user-taught” agents could be supplied to help individual users curate the shape of their feeds over time.¹⁵⁴ These bots, however, might be constrained by the understanding of the platform’s mission, which excluded normatively troublesome activity characterizing the tails of the ideological distribution.

Finally, another way of mitigating exploitation concerns focuses on advertisers rather than users. Firms advertising on platforms are often unaware their products or services are marketed next to fake news, despite having an aversion to that arrangement.¹⁵⁵ They lack, however, information on when and how this occurs. Increased disclosure by platforms on “whether . . . advertisements appear on misinformation outlets,” as well as increased “transparency for consumers about which companies advertise” there, provides the potential to stimulate a collective shift to a more truthful equilibrium.¹⁵⁶ Such disclosures help ensure that “the means of ensuring legibility [will not completely] fade into the background of the ordinary patterns of our li[ves],”¹⁵⁷ as platform affordances become too banal to notice. Such disclosures, finally, might be mandated by law, potentially as a means of mitigating fraud concerns related to platform use.

Conclusion

In this essay, I have tried to offer an affirmative vision of social platform governance in the long run, or at least the seeds of such a vision. No doubt this vision is leagues away from the grubby, venal, and hateful reality of social platforms now. It is, indeed, a stark contrast to those extant realities. But one of the functions of scholarship is to generate plausible pathways away from a suboptimal institutional status quo. The articulation of alternatives is itself of value.

As I have suggested, drawing on sociological and political science literature on islands of integrity in public administration allows us to see some of the limits of existing regulatory strategies with respect to social platforms. Doing so opens up new opportunities for improved public and private governance. Of course, the model of islands of integrity in a public administrative context cannot be mechanically transposed over to the platform context. But by offering us a new North Star for reforming governance efforts, I hope it can advance our understanding of how to build platforms fit for our complex, yet (perhaps still) fragile democratic moment.

98 S. Cal. L. Rev. 1287

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Aziz Z. Huq*

* Frank and Bernice J. Greenberg Professor of Law, University of Chicago Law School, and associate professor, Department of Sociology. Thanks to Erin Miller for extensive and illuminating comments, and to participants in the symposium—in particular Yasmin Dawood—for terrific questions and conversation. The editors of the Southern California Law Review, in particular Michelle Solarczyk and Tyler Young, did exemplary work in making this essay better. The Frank J. Cicero Foundation provided support for this work.

In the Name of Accountability

September 2025September 2025Heidi Kitrosser*

Introduction

The Supreme Court has increasingly embraced legal doctrines that empower elected officials to hide politically inconvenient information and ideas from the American people. Two lines of precedent illuminate this phenomenon and its reach across seemingly disparate areas of the case law. The first is a development in First Amendment law known as government speech doctrine and the closely related rule that public employees receive no First Amendment protection for their work product speech—that is, for anything that they write or say while doing their jobs. This precedent puts at risk the ability of public employees or publicly subsidized experts—ranging from auditors hired to ferret out agency misconduct to scientists commissioned to study and report on changing climate patterns—to convey truthful information and competent, good faith analyses consistent with disciplinary and professional norms. The second line of precedent is the aspect of separation of powers law known as unitary executive theory (“UE theory,” “UE,” or “unity”). UE proponents argue that the president must fully control all discretionary executive activity in the United States, at minimum through an unfettered removal power. This jeopardizes the independence of federal actors who are charged with research and reporting on matters ranging from public corruption to public health.

The two doctrines not only have similar impacts on information and analysis in the United States, but also share a common rationale: political accountability. Proponents of government speech doctrine emphasize that the people can respond to government speech at the ballot box, rewarding elected officials for speech that they like or punishing them when they dislike what they hear. As for UE theory, supporters emphasize that the president is the only elected official in the federal executive branch. Indeed, they describe the president as more politically accountable than anyone else holding elected office in the United States, as the president alone is subject to nationwide election. It is crucial, they argue, that the president alone exercises discretionary executive power so that the people know whom to blame or reward electorally for the use of such power. Similarly, they brush away concerns about presidential abuses by stressing the ability of the people to punish transgressions at the ballot box.

The judiciary is far from alone in crafting and buttressing these schools of thought. To the contrary, UE theory was shaped and heavily promoted by the modern conservative legal movement well before the Roberts Court embraced it. Indeed, even as the Supreme Court rejected UE theory in the 1988 case of Morrison v. Olson, the Justice Department under Attorney General Meese relied on it internally and championed it externally along with the then-nascent Federalist Society. Today, with the support of the Supreme Court, and with Donald Trump retaking the presidency and characterizing career experts across government as parts of a rogue “deep state,” UE theory and its accountability rationale have more influence than ever.

Although, to my knowledge, no similarly probing intellectual history has been done with respect to government speech doctrine, the doctrine aligns intuitively with classic complaints about how Americans’ tax dollars are spent, including on public education, public broadcasting, and other forms of knowledge production. Such gripes are not intrinsically partisan, but they can be marshalled in a partisan fashion when framed as appeals to stop “wrongheaded” or “offensive” views from being supported by public funds. Over the past several years, we have indeed seen campaigns, in both legal and political realms, for elected officials to control the communicative output of a range of government programs. These campaigns often characterize civil servants as parts of a leftist deep state, echoing the rhetoric of unitary executive theorists. Their targets include elementary school teachers, college professors, and librarians whom they deem “woke” and indoctrinating. The major thread of argument in these political and legal attacks has been accountability—specifically, the notion that the electorate, through elected representatives, should get the final word on the content of publicly funded knowledge production. Framed in legal terms, the argument is that all such output is the government’s own speech.

Yet even as accountability serves as a rallying cry for proponents of UE theory and government speech doctrine, there is a profound tension between that call to arms and the negative impacts of both government speech doctrine and UE theory on the information ecosystem. This tension stems from two very different visions of accountability. Government speech and unitary executive arguments each focus on a thin vision of accountability, one that I have elsewhere called “formal accountability.” Formal accountability requires only that there exist some means, mainly the ballot box, by which the public can accept or reject officials.¹

A more robust vision of accountability—one that I label “substantive accountability”—recognizes that accountability “is a ‘they,’ not an ‘it.’ ”² Indeed, the casting of a single vote for an official—even assuming the opportunity to vote for or against them again some number of years later—is too blunt an instrument to constitute considered approval of all manner of decision whether big or small, technical or non-technical, anticipated or unanticipated. Rather, holding officials accountable entails countless acts over time, ranging from legislative oversight to internal and external whistleblowing to fearless investigative journalism. All of these acts—including, but not limited to, voting—require the gathering and exchange of information and ideas. In the longer-term, they require a knowledge ecosystem that reliably produces such communications and supports a citizenry capable of assessing them. If one’s goal is substantive accountability, then government speech doctrine and UE theory are woefully inadequate to achieve it. To the contrary, they profoundly undermine it, especially when they are interpreted broadly.

Given the growing importance of UE theory and government speech doctrine in both legal and political realms, it is more important now than ever to understand how they undermine, rather than protect, meaningful, substantive accountability. Viewing these two schools of thought together also helps us to see how doctrines across seemingly disparate areas of the law can interact with and buttress one another and be harnessed by partisan interests.

In Part I of this Article, I summarize the respective accountability-based cases for UE theory and government speech doctrine. I explain that each rationale is premised on a simplistic, formal vision of accountability. In contrast, I argue that substantive accountability, which is antithetical to UE theory and to broad interpretations of government speech doctrine, is more faithful to constitutional principles and more desirable as a practical matter. In Part II, I elaborate on and illustrate the points made in Part I by drawing from the major Supreme Court cases on UE theory and government speech doctrine. In Part III, I present several examples of how UE theory and government speech doctrine have been wielded in the courts and the political branches to undermine substantive accountability. In Part IV, I consider where the case law leaves openings to impose limits on each doctrine to preserve substantive accountability.

I. Substantive Accountability and the Constitution

Proponents of UE theory and government speech doctrine assume a very simplistic vision of government accountability. In the case of UE theory, they suggest that because the president is the only elected member of the executive branch, he alone can be accountable to the people in executing the law.³ Thus, UE proponents bolster their textual and historical arguments—which I and others have discussed elsewhere⁴ and which I address briefly in Part II—by suggesting that accountability is a core reason why text and history dictate a unitary executive,⁵ and that accountability independently demands a unitary executive.⁶ Proponents elaborate further on presidential accountability by comparing the president not only to unelected bureaucrats, but also to members of Congress. Although the latter are elected, the argument goes, the president alone is subject to election by the entire nation through the Electoral College. He is also uniquely visible in culture and society.⁷

In the case of government speech doctrine, the Supreme Court and other proponents have treated accountability—again, in the form of elections—as a safety net that enables the people to register disapproval of unpopular government speech. They also suggest that government speech itself bolsters accountability, both in the sense that the government can give the people what they want through speech and that it can seek to persuade them through speech.

A number of scholars have critiqued the Court’s treatment of accountability in both UE theory and government speech doctrine cases. With respect to UE theory, critics observe that it massively oversimplifies how accountability is achieved as a practical matter. Indeed, it seems naïve to believe that a single vote for president held once every four years can bear the accountability load for virtually all executive branch activity. Even if we put aside the Electoral College—on account of which the popular vote winner lost the presidency twice in the last quarter of a century—and the fact that voters across the country are not a monolith, the assumption that a presidential election result constitutes a referendum on every discretionary decision of the executive branch, including the most obscure and technical ones, is heroic.⁸

Furthermore, to the extent that constitutional accountability is about the electoral relationship between the people and elected officials, those officials include members of Congress as well as the president.⁹ As Blake Emerson writes, unity proponents “do not grapple with the competing democratic authority of Congress to structure the Executive Branch.”¹⁰ To the contrary, unity is invoked to invalidate legislation passed by both houses of Congress—and, it is no small matter, signed by the president¹¹—that seek to create some independence from unfettered presidential control in the administrative state.

Many if not most of the statutory innovations targeted by unity proponents themselves are designed to foster accountability—for instance, by shielding internal investigations from direct partisan control. This is not to say that administrative independence always enhances accountability. The point, rather, is that devising structures to maximize accountability, let alone to do so while preserving other goals and values, calls for legislative innovation and flexibility rather than categorical rules. As Justice Kagan put it, dissenting in 2020 in Seila Law v. Consumer Financial Protection Bureau, “[d]iverse problems of government demand diverse solutions. They call for varied measures and mixtures of democratic accountability and technical expertise, energy and efficiency. Sometimes, the arguments push toward

tight presidential control of agencies. . . . At other times, the arguments favor greater independence from presidential involvement.”¹²

Justice Kagan’s point dovetails nicely with another major scholarly critique of UE theory’s formalistic accountability. That is, formal accountability is consistent neither with the ordinary meaning of accountability nor with the conception of it embodied in the Constitution’s structure. Elsewhere, I have summarized some of the major literature on these points as follows:

[Unity’s] vision of accountability is inconsistent with the far more complex [scheme] envisioned by the Constitution, [which] creates a web of accountability shared by multiple legislators representing multiple constituencies and by the presidency alike. Furthermore, constitutional accountability mechanisms are not directed solely toward vindicating majority policy preferences . . . but also toward guarding against abuse, incompetence, and majoritarian tyranny. In the context of the administrative state . . . constitutional accountability values demand not only multiple avenues for political accountability, but also intra-bureaucratic accountability mechanisms characterized by “complex chains of authority and expertise.”¹³

I have built on these insights in my own work by focusing on the role that transparency plays in fostering meaningful, or substantive, accountability.¹⁴ Even if our only goal were electoral responsiveness, that goal cannot be realized without popular access to information about government and an electorate capable of assessing it. Unfettered presidential control of the administrative state enables presidents to frustrate these ends by stifling or manipulating politically inconvenient information ranging from misconduct investigations to economic or scientific analyses that might cast doubt on administration priorities. The problem is yet more apparent when one considers the array of accountability mechanisms beyond the franchise, all of which require a reliable flow of information and analyses.

As for government speech doctrine, a key critique of the accountability rationale is that it assumes a level of authorship transparency that is not necessarily present in state-created or state-disseminated speech. As Helen Norton writes, “government speech is most valuable and least dangerous when members of the public can identify the government as its source. If, on the other hand, the expression’s government source is obscured . . . then political accountability provides no meaningful safeguard.”¹⁵ Although the Supreme Court has said that it might weigh public perception among other factors to determine whether speech is private or public,¹⁶ the Court has developed no “reliable method” to gauge it.¹⁷ To make matters worse, the other factors that the Court considers—such as the extent of government control over speech—can themselves undermine accountability if they are not accompanied by authorship transparency.¹⁸

A closely related problem can occur, even where there is no doubt that the speech at issue is produced or disseminated by the government, if that speech is falsely presented as a product of expertise or evidence-based fact-finding rather than political pressure. As with UE theory, the problem is politicized knowledge production. Elsewhere, I have referred to this phenomenon as “distortion.”¹⁹

Distortion occurs when the government—whether through employment or subsidies—sponsors the creation or dissemination of speech but imposes conditions that distort the nature of the speech or its production.²⁰ In the context of government speech doctrine, the conditions would typically be imposed on the receipt of subsidies or on continued employment. In the unitary executive context, the means of enforcing conditions can vary and will depend partly on how aggressively UE theory is interpreted. At minimum, enforcement can entail actual or threatened removal from office. Recently, I illustrated the phenomenon of distortion as follows:

Take the example of a climate scientist who works for NASA and contributes to publicly issued reports and testimony that purport to detail scientific findings. Presumably, it is no secret that the scientist works for a government agency and is paid with public funds. Yet an accountability concern remains insofar as the public can be expected to assume that the scientist’s contributions to public reporting are based on professional judgment and scientific best practices. Were those contributions instead shaped by political directives, the public would effectively be duped through distortion that cloaks political messaging in the vestments of science.²¹

Distortion can have both near-term and very far-reaching impacts on substantive accountability. To be sure, the line between short- and long-term consequences is a fuzzy one. For example, suppose that political appointees pressured civil servant scientists in an agency to bury or skew research findings that cast doubt on the feasibility of a presidential initiative. In the short run, such intimidation might prevent the public from hearing the unvarnished views of scientists on an electorally salient matter. In the longer run, the pressure campaign—particularly if it were not an isolated incident—might drive highly qualified scientists from the affected agency and deter others from serving in the first place. Such churn, along with the atmosphere that precipitated it, could impact public access to good-faith products of scientific expertise. Still more perniciously, it might undermine the capacity of the public to distinguish expertise from unfounded assertion.

Nonetheless, rough distinctions can be drawn between actions that undermine accountability in the near term and those that do so over time. Indeed, the preceding example suggests an intuitive place to draw a line: between acts or policies designed to keep discrete pieces of information or analysis from reaching the public, and those designed to politicize public knowledge-producing institutions from the inside. This distinction loosely parallels one made by political scientist Terry Moe between two techniques through which presidents wield control over the administrative state: centralization, whereby presidents institutionalize top-down White House control over agencies, and politicization, whereby presidents seek to shape

agencies through appointment and removal powers so that they are politically in tune with the White House in the first place.²²

In pointing to both short- and long-term impacts to accountability, I mean to highlight the depth of the threat that government speech doctrine and UE theory pose to substantive accountability. From a short-term perspective, even if a knowledge institution were to remain fundamentally unchanged by political interference, the partisan manipulation of discrete pieces of data or expert analyses can distort the very picture of reality against which the electorate votes. In the longer run, the impact is yet more serious and harder to reverse, as politicization permeates state-funded enterprises purportedly devoted to disciplinary and professional expertise.

II. Major Judicial Precedent (and a Glimpse at Executive Branch Precedent)

A. Government Speech Doctrine

In this Section, I review the major Supreme Court cases on government speech doctrine, emphasizing their relationships to accountability. The Court has developed the doctrine over the past few decades. Its premise is largely uncontroversial: “[w]hen the government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.”²³ For example, as Justice Rehnquist wrote in 1991’s Rust v. Sullivan, “[w]hen Congress established a National Endowment for Democracy to encourage other countries to adopt democratic principles, . . . it was not constitutionally required to fund a program to encourage competing lines of political philosophy such as communism and fascism.”²⁴ Similarly, Justice Breyer, writing for the majority in Shurtleff v. Boston in 2022, posited that “Boston could not easily congratulate the Red Sox on a victory were the city powerless to decline to simultaneously transmit the views of disappointed Yankees fans.”²⁵

Despite the commonsense idea at the doctrine’s core—and the intuitive appeal of examples like those invoked by Rehnquist and Breyer—the doctrine’s scope is heavily contested. Two categories of cases raise especially tough questions. The first entails restrictions that fall on speech that can plausibly be characterized as private, rather than governmental speech. For example, the Supreme Court held in Walker v. Texas Division, Sons of Confederate Veterans that specialty license plates in Texas, even those designed by private groups to reflect private hobbies and interests, constitute government speech.²⁶ Dissenting on behalf of himself and three other justices, Justice Alito lamented the Court’s “capacious understanding of government speech” that “threatens private speech that government finds displeasing.”²⁷ Sounding a similar alarm, Mary-Rose Papandrea wrote that Walker put “the Court’s growing deference to government institutional actors . . . on steroids, allowing the government to disfavor private speech in the name of protecting its image.”²⁸

The second category, and the one on which I focus in this essay, arises when government purports to subsidize speech that reflects evidence-based reasoning or that otherwise is governed by professional or disciplinary norms, but conditions its support on terms that would distort the nature of the undertaking. Distortion would occur, for example, if the government were to hire investigators to probe alleged wrongdoing or climate scientists to undertake research and report their findings while pressuring them to bury politically unwelcome results.

Distortion undermines free speech values in the same way that it undermines accountability: in the short term, it uses subsidized speakers to launder political messaging and present it as professional or disciplinary expertise; in the long run, it degrades the public’s capacity to consume and process information necessary to oversee their government.

The distorting potential of government speech doctrine is as old as the doctrine itself. Indeed, commentators most often trace the doctrine’s origins to Rust v. Sullivan, a case that itself raises the specter of distortion. In Rust, the Supreme Court upheld federal regulations barring family planning clinics from mentioning abortion in the course of providing federally subsidized counseling.²⁹ Although the Rust Court did not invoke the concept of government speech explicitly,³⁰ the Supreme Court described Rust in these terms just a few years later, in Rosenberger v. Rector and Visitors of the University of Virginia.³¹ The Rosenberger Court characterized Rust as grounded in the notion that “when the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes.”³² Rust’s critics have argued that the challenged conditions forced medical providers to choose between funding and professional and ethical norms; in short, that the conditions distorted the funded healthcare.³³

Fifteen years after Rust, the Supreme Court decided the government speech case that is most conducive to distortion: Garcetti v. Ceballos.³⁴ Garcetti established that public employees receive no First Amendment protection against termination or other job-related penalties for speech that they convey while doing their jobs. Garcetti relies at least partly on a government speech rationale, characterizing public employee work product speech as speech that “the employer itself has commissioned or created.”³⁵ The assumption that government employees invariably convey a government-crafted message when they speak runs headlong into distortion concerns in the many cases in which employees are hired to provide professional judgment and expertise.

The Supreme Court regularly parries concerns about abuses of the doctrine by invoking political accountability. In Shurtleff v. City of Boston, for example, the Court reiterated its view that “[t]he Constitution . . . relies first and foremost on the ballot box, not on rules against viewpoint discrimination, to check the government when it speaks.”³⁶ In Walker, the Court similarly argued that “the democratic electoral process . . . provides a check on government speech,” and added that such speech itself is an expression of voters’ wishes: “members of the public . . . influence the choices of a government that, through words and deeds, will reflect its electoral mandate.”³⁷

The Garcetti Court also suggested that electoral accountability will yield legislation to protect public employee speech that is in the public interest. Writing for the Garcetti majority, Justice Kennedy cited the existence of a “powerful network of legislative enactments—such as whistle-blower protection laws and labor codes—available to those who seek to expose wrongdoing.”³⁸ This reasoning is similar to that invoked by the Court in 1983’s Bush v. Lucas.³⁹ The Lucas Court held that most First Amendment damages claims brought by federal employees against their employers are precluded by federal statutory civil service protection laws,⁴⁰ even as the Court “assumed, arguendo, that the [statutory] remedies . . . were not ‘as effective as an individual damages remedy.’ ”⁴¹ The Court reasoned that Congress has ample incentive to protect public employee speech, particularly whistleblowing, given Congress’s “special interest in informing itself about the efficiency and morale of the Executive Branch.”⁴²

B. Unitary Executive Theory

At first blush, UE theory has little in common with government speech doctrine; the former is an argument about government structure—specifically, the separation of powers—and pertains only to the federal government. Unity’s core assertion is that the president must control all discretionary activity in the federal executive branch, at minimum by having the power to remove anyone whose job entails such activity. The theory is grounded partly in interpretations of Article II’s text and history.

Yet UE theory shares important features with government speech doctrine. Most importantly, unity threatens substantive accountability even as its proponents justify it largely by reference to formal accountability. As with government speech doctrine, distortion is the main means by which UE theory can undermine substantive accountability.

A 1988 memorandum opinion by the Justice Department’s Office of Legal Counsel (“OLC”) illustrates how UE theory can enable political control of ostensibly non-political, even highly technical, communications.⁴³ In that memo, the OLC took the position that Congress could not constitutionally require the Director of the Centers for Disease Control (“CDC”) to mail “AIDS information fliers” to the public “without necessary clearance” by the president.⁴⁴ “It matters not at all,” the OLC asserted, “that the information in the AIDS fliers may be highly scientific in nature. The president’s supervisory authority encompasses all of the activities of his executive branch subordinates, whether those activities be technical or non-technical in nature.”⁴⁵ The OLC further stressed the categorical nature of the president’s authority by quoting a 1982 OLC opinion to the effect that the president’s “ultimate control over subordinate officials . . . includes the right to supervise and review [their] work . . . including reports issued either to the public or to Congress.”⁴⁶

As we have seen, unity’s proponents deem it essential to preserve accountability,⁴⁷ despite its negative effects on substantive accountability. Recall the major features of the accountability-based argument for unity. First, proponents observe that the president is the only elected member of the federal executive branch and contrast him with unelected bureaucrats.⁴⁸ They also deem him more politically accountable than members of Congress, given his high visibility and the fact that he alone is subject to election by the entire nation through the Electoral College.⁴⁹ As such, it is only when the president “controls all law execution in the United States [that] the national electorate has a clear object of blame or reward for such activity.”⁵⁰

The accountability rationale for unity is not extolled only by sympathetic scholars and executive branch lawyers. It has also been central to unity-friendly judicial precedent since the 1926 case of Myers v. United States.⁵¹ In Myers, the Court invalidated legislation that required the president to obtain Senate approval before removing a postmaster whom the president had appointed with the Senate’s advice and consent.⁵² Fittingly, the Court’s opinion was written by Chief Justice Taft, the only Justice in history to have previously served as U.S. President.⁵³ Much of Taft’s analysis centered on the so-called “Decision of 1789,”⁵⁴ a lengthy debate in the First Congress on the president’s power to remove officers.⁵⁵ Taft characterized the Decision partly as a referendum on the accountability rationale. Quoting James Madison in the 1789 Debate, Taft wrote:

If the President should possess alone the power of removal from office, those who are employed in the execution of the law will be in their proper situation, and the chain of dependence be preserved: the lowest officers, the middle grade, and the highest will depend, as they ought, on the President, and the President on the community.⁵⁶

Taft also stressed the relative depth of presidential accountability: “the President, elected by all the people, is rather more representative of them all than are the members of either body of the Legislature, whose constituencies are local and not country wide.”⁵⁷

More than seven decades would pass before unity arguments would again be received so enthusiastically by the Supreme Court. In the interim, the Court decided a series of cases in which it upheld statutory restrictions on removal, distinguishing each from the provision reviewed in Myers and thus effectively narrowing Myers’ reach.⁵⁸ In Humphrey’s Executor v. United States, decided just nine years after Myers, the Court deemed Myers’ holding limited to “purely executive officers.”⁵⁹ In two 1980s cases—Bowsher v. Synar⁶⁰ and Morrison v. Olsen⁶¹—the Court characterized Myers as a directive against Congress reserving the removal power for itself; Myers did not categorically bar other limits, such as for-cause requirements, on the president’s power to remove even purely executive officers.⁶² Chief Justice Rehnquist, writing for the Morrison Court, explained that the validity of a removal restriction turns on a flexible, functional question: whether the restriction is “of such a nature that [it impedes] the President’s ability to perform his constitutional duty.”⁶³

As the lone dissenter in Morrison, Justice Scalia penned an opinion that has since become a classic in the UE theory canon and that presaged the Roberts Court’s warm embrace of unity.⁶⁴ Among other things, Scalia invoked accountability.⁶⁵ The president, he observed, “is directly dependent on the people.” Indeed, the Constitution’s founders touted the relative accountability of a single president as opposed to a multi-member body: “since there is only one President . . . [t]he people know whom to blame” when something goes awry.⁶⁶ In the case of prosecutors, an unfettered presidential removal power ensures that “when crimes are not investigated and prosecuted fairly . . . the President pays the cost in political damage to his administration.”⁶⁷

Beginning in 2010, the Roberts Court retreated from the functional approach that the Supreme Court had embraced for most of the twentieth century.⁶⁸ As of now, the Court has not explicitly overruled Humphreys Executor, Bowsher, or Morrison. It has, however, reframed them, suggesting that they stand only for discrete “exceptions to the President’s unrestricted removal power.”⁶⁹ Accordingly, the Roberts Court has struck down several statutes imposing limits on this power, including a law that permitted the president to remove the director of the Consumer Financial Protection Bureau only for “inefficiency, neglect of duty, or malfeasance in office.”⁷⁰

Like the Taft Court, the Roberts Court identifies accountability as a central reason why the Constitution demands a unitary executive. Indeed, in every case in which it has rejected presidential removal restrictions, the Roberts Court has followed Taft’s lead by quoting James Madison’s 1789 statement that “the lowest officers, the middle grade, and the highest,” ought to depend “on the President, and the President on the community.”⁷¹

To be sure, unity’s proponents do not rely solely on accountability; they also invoke arguments from constitutional history and text. Elsewhere, I have recounted and built on some of the major rejoinders to these text and history-based arguments.⁷² Although my focus in this Essay is on accountability, it is worth noting that unity’s text and history-based arguments—and their failings—are themselves intertwined with unity’s enervated vision of accountability. This is true, for example, of unity proponents’ over-reading of founding-era arguments linking constitutional and statutory provisions to accountability. Proponents tend to leap from highly case-specific founding era arguments to a broad, acontextual constitutional unity directive, a move enabled by their fixation on formal, rather than substantive accountability.⁷³ This phenomenon is illustrated by unity proponents’ use of the founding era decision not to append an advisory council to the president. As I explained in a previous article:

[U]nity proponents cite founding fears that the President would hide behind his council, blaming it for his own poor decisions and thus defeating accountability. From this, unity proponents leap to the conclusion that the founders wanted the President to fully control all discretionary executive decisions and executive officers. Yet this conclusion massively oversimplifies the nature of the council debate. Council opponents focused on features specific to the proposed council, including its small size and its ability to collude with the President in relative secrecy. Notably, they also feared that the President and his council would seek to appoint executive branch officers who “possess[ed] the necessary insignificance and pliancy to render them the obsequious instruments of [the President’s] pleasure.” At minimum, the council debate, centering as it did on the specific features of the proposed council, simply did not address whether the executive branch must in all respects be unitary. If anything, the accountability-related concerns articulated in the debate suggest that the founders feared full presidential control over executive branch decision making and officers. Unfettered control could, among other things, foster secretive collusions between the President and those in his thrall.⁷⁴

III. Contemporary Threats to Substantive Accountability

In Part III, I present three sets of examples that span the period from the post-Watergate years to the earliest days of the second Trump Administration. In Section III.A, I look at the development of UE theory in the Department of Justice (“DOJ”) during the late 1970s and 1980s and its use by the Department to resist post-Watergate ethics and oversight measures. I observe that Donald Trump has picked up this mantle in more recent years, including through his resistance to oversight by Inspectors General. In Section III.B, I look at the impact of both unity and government speech doctrine on the civil service more broadly. In Section III.B.1, I discuss the relationship between the federal civil service and UE theory. I focus especially on “Schedule F,” newly reinstated through executive order on the first day of the second Trump Administration and aimed at replacing vast swaths of the civil service with political appointees. In Section III.B.2, I summarize two key reasons, including Garcetti’s impact, for the enervated state of first amendment protections for federal civil servants. In Section III.B.3, I cite several examples—including a recent spate of state laws regulating the classroom speech of public school teachers and professors—of government speech doctrine’s effect on state and local employees.

A. Unitary Executive Theory and Federal Investigations

Investigations that could implicate the president or his allies are classic locations for dispute over the constitutionality and wisdom of restrictions on the president’s ability to fire personnel or interfere with their work. Morrison v. Olson itself involved a challenge to the independent counsel provisions of the 1978 Ethics in Government Act. Enacted in the wake of Watergate, the Act was an effort to confront public corruption, in part by creating an independent counsel (“IC”) with some degree of distance from presidential control. The Act’s IC provisions were responsive to fears that presidents would, as Richard Nixon had done, interfere with Justice Department investigations in which they could be implicated. Olson challenged these provisions partly on the basis that the IC was incompatible with a unitary executive because the IC did not serve at the president’s pleasure. Instead, the IC could be terminated only by the Attorney General (“AG”), who herself is subject to at-will dismissal by the president. The AG could fire the IC “only for good cause, physical or mental disability . . . or any other condition that substantially impairs [the IC’s] performance of . . . [their] duties.”⁷⁵

The majority and dissenting opinions in Morrison reflected two very different ideas about unity and accountability. To the majority, written by Justice Rehnquist, the judicial mission was limited and functional: its role was not “to define rigid categories”⁷⁶ but to ensure that legislation does not “interfere impermissibly with [the president’s] constitutional obligation to ensure the faithful execution of the laws.”⁷⁷ Among the factors that Rehnquist cited to explain why the removal restriction passed this practical assessment, it “was essential, in the view of Congress, to establish the necessary independence of the office,” an office that could be tasked with investigating the president or close advisors.⁷⁸ To Justice Scalia, the lone dissenter, the president possessed all the executive power—a conclusion that he reached by interpreting Article II’s opening words, “[t]he executive Power shall be vested in a President of the United States,” to mean “all of the executive power”—and such power necessarily entails complete and indefeasible removal authority.⁷⁹ As for the risk that the president might abuse this power, Justice Scalia answered that “the primary check against prosecutorial abuse is a political one. The prosecutors who exercise this awesome discretion are selected and can be removed by a President, whom the people have trusted enough to elect.”⁸⁰ Justice Scalia’s vision of accountability was so narrow that he treated the IC provisions, enacted by elected members of Congress and subject to presidential veto, as constitutionally intolerable because they might subject the president and their advisers to popular scrutiny. The provisions, Scalia said, “weaken[] the Presidency by reducing the zeal of his staff” and “enfeeble[] him more directly in his constant confrontations with Congress, by eroding his public support.”⁸¹

Although functionalism—and substantive accountability—prevailed over formalism in Morrison, Justice Scalia’s views would eventually receive a much warmer reception in the Roberts Court. Within the executive branch, unitary executive theorists did not need to wait nearly so long to see their ideas put into practice. The Justice Department in the Reagan Administration was deeply entwined with the conservative legal movement,⁸² and both the Department and the broader movement made the advancement of UE theory a priority.⁸³ Conservative legal elites viewed unity as one means of reigning in the perceived liberalism of the administrative state, and were also drawn to it because Republicans at the time had better electoral chances with the presidency than in either house of Congress.⁸⁴

Much of the pro-unity activity in the Reagan-era Justice Department was directed against post-Watergate legislation that imposed oversight measures on executive branch lawyers. Recounting these efforts, Deborah Pearlstein writes:

[T]he first sustained campaigns to apply unitary executive theory to the day-to-day workings of government began within the Department of Justice, and some of the most important battles focused on just [the] claim . . . that an appropriate understanding of the executive power required recognizing constitutional limits on the ability of Congress and the federal courts to engage in professional oversight of Justice Department lawyers. On some occasions quite visibly, on others largely in secret, movement lawyers deployed unitary executive arguments to challenge or block three of the major tools that post-Watergate reformers had pursued to ensure government attorneys would worry more about being held accountable for their misconduct: (1) strengthened rules of professional ethics; (2) an Office of Professional Responsibility inside the Department of Justice to investigate ethics complaints against government attorneys; and (3) independent inspectors general to investigate allegations that government officials were responsible for waste, fraud, or abuse.⁸⁵

Unity proponents also made their cases—for UE theory generally and against independent oversight of federal officials in particular—to the practicing bar, to legal academics, and to law students.⁸⁶ These efforts contributed to unity’s eventual reversal of fortune in the courts. They also helped to shift the norms of acceptable conduct among government officials, both because they “weakened internal ethics checks” and created a permission structure for ethical breaches.⁸⁷ Indeed, the repeated refrain that oversight legislation weakens the president and affronts voters lends itself to arguments that even highly credible and serious misconduct allegations are mere “partisan attack[s].”⁸⁸

Although UE theory has a decided partisan valence historically, its allure as a means to push back against oversight has not been lost on Democrats when they occupy the oval office. Although the DOJ Inspector General—against which movement lawyers fought—was not established until 1988,⁸⁹ the initial Inspectors General Act was enacted in 1978, and then-President Jimmy Carter’s OLC objected to two aspects of the law as inconsistent with unitary presidential control of subordinates.⁹⁰ John Harmon, Carter’s Acting Assistant AG for the OLC, objected in a memorandum to the Act’s removal provision, which gave the president at-will removal power over Inspectors General (“IGs”) but required them to notify both Houses of Congress of their reasons for removal. Citing Myers, Harmon called this an “improper restriction on the President’s exclusive power to remove Presidentially appointed executive officers.”⁹¹ Harmon also objected to the IG’s statutory “obligation to keep Congress fully and currently informed” and the related “requirement that [the IG] provide any additional information or documents requested by Congress . . . without executive branch clearance or approval.”⁹² In Harmon’s view, these informing rules interfere with the president’s “general administrative control over those executing the laws,” which “includes the right to coordinate and supervise all replies and comments from the executive branch to Congress.”⁹³

Finally, and unsurprisingly, Donald Trump has been especially brazen in resisting accountability measures and in invoking unity to do so. Examples to this effect include his dismissals of Inspectors General during his first administration and in the first week of his second administration. During his first administration, Trump notoriously fired several Inspectors General who investigated controversies ranging from the administration’s handling of the Covid-19 pandemic to the call between Trump and the Ukrainian president that led to Trump’s first impeachment.⁹⁴ Trump made clear his view that UE theory empowered him to take such actions.⁹⁵ As of this writing, less than one week into Trump’s second administration, he has already fired more than a dozen Inspectors General in the course of a single Friday evening. The firings eschewed the applicable statutory requirement that Congress receive thirty days’ notice of any removal including a “substantive rationale” with “detailed and case-specific reasons” for removal.⁹⁶

B. Broader Attacks on the Civil Service: UE Theory and Government Speech Doctrine at Work

Unitary Executive Theory

UE theory also threatens the federal civil service on the whole, including disciplinary experts such as scientists, economists, and public health researchers. Unity can undermine their ability to disseminate competent, good-faith information and analyses that an administration finds politically inconvenient. Such impacts have both short-term and long-term aspects. In the short term, presidents and their political subordinates may invoke unity to block or manipulate certain communications. In the longer run, they may nip such communications in the bud more seamlessly by thinning out the merit-based civil service in favor of a largely political workforce.

As for short-term impacts, there are two major categories of valuable civil service communications at risk. The first is whistleblowing regarding wrongdoing in federal agencies. Currently, civil service laws protect federal employees who blow the whistle on bad acts including illegality, waste, and abuse.⁹⁷ These protections would be compromised should an administration assert, and even more so should courts agree, that such legislation cannot constitutionally prevent the president from removing, at will, anyone who exercises discretionary executive power. As I elaborate in Part IV, it is by no means a foregone conclusion that courts would allow presidents to bypass civil service protections on unitary executive grounds. It is possible, however, that courts would indeed extend the logic of the Roberts Court removal cases so far. Courts might also draw to the same effect on the Supreme Court’s recent decision in Lucia v. Securities and Exchange Commission in which the Court expanded the definition of “officers” who constitutionally cannot be part of the civil service.⁹⁸

UE theory can also be invoked to stifle civil servants who seek to convey information or analysis in the ordinary course of doing their jobs. Recall, for example, the OLC’s 1988 opinion to the effect that Congress may not require executive branch personnel to distribute even highly technical information without a chance for presidential intervention.⁹⁹ Furthermore, to the extent that some such speech falls within the terms of federal whistleblower protection laws,¹⁰⁰ it is vulnerable to the same unity-based threats as that faced by federal whistleblowers more broadly.

Unity can enable much more than the blocking of isolated pieces of information and analysis. It can have a deep, long-range impact by thinning out the ranks of the civil service, enabling the president to fill and potentially fire large swaths of the federal workforce previously designated as nonpartisan merit hires. As noted, it is by no means inevitable that courts would sign off on such sweeping changes. Existing case law does, however, open the door to such a possibility, and at minimum, it can embolden presidents to test the boundaries of precedent by trying to initiate such action.

Donald Trump seems determined to push the limits of a president’s power to politicize the federal workforce. On the first day of his new administration, January 20, 2025, he issued an executive order (“EO”) reinstating the so-called “Schedule F” order that he had issued in the waning days of his first administration.¹⁰¹ The EO authorizes the transition of potentially tens of thousands of career positions throughout the federal workforce into political appointments.¹⁰² In its purpose section and even its title, the EO projects confidence that it is permitted, even demanded, by unity and accountability.¹⁰³ The EO is entitled “Restoring Accountability to Policy-Influencing Positions Within the Federal Workforce,” and it asserts that the president has “sole and exclusive authority over the executive branch.” It adds that any power held by federal employees “is delegated by the President,” and that employees “must be accountable to the President, who is the only member of the executive branch, other than the Vice President, elected and directly accountable to the American people.”¹⁰⁴ Fittingly, the idea behind Schedule F during Trump’s first administration originated in a memorandum suggesting that Trump “[e]xplore the ‘Constitutional Option’ for firing federal employees,”¹⁰⁵ and that civil service protections might be unconstitutional.¹⁰⁶

There is also an obvious kinship between the EO’s reliance on the notion of presidential accountability and Trump’s longstanding rhetoric about the abuses of the so-called “deep state.”¹⁰⁷ As Donald Moynihan writes, “Trump was not just antagonistic toward the career public service: this hostility was central to his political identity. He had openly campaigned against the ‘deep state.’ ”¹⁰⁸ The EO’s own language frames it as a reaction to “numerous and well-documented cases of career Federal employees resisting and undermining the policies and directives of their executive leadership,” and as a “restor[ation of] accountability to the career civil service.”¹⁰⁹

Federal Employees and the First Amendment

Federal civil service laws are especially crucial to protect accountability-enhancing speech because federal employees lack robust First Amendment protections. On the rare occasions that an employee’s free speech lawsuit proceeds to the merits, it confronts the Garcetti hurdle. Should a court conclude that the employee’s speech either occurred outside of the course of their employment or warrants an exception from Garcetti, the employee still must overcome a balancing test that defers substantially to employers’ rationales.¹¹⁰

As noted earlier, the reason why federal employees are rarely able to invoke the First Amendment to sue their employers directly is because the Supreme Court held in 1983’s Bush v. Lucas¹¹¹ that the federal civil service laws preclude such suits.¹¹² The Lucas Court expressed confidence that Congress would protect whistleblowers.¹¹³ It did not, apparently, anticipate a future in which whistleblower protection laws might themselves be overtaken by aggressive interpretations of UE theory. Even on their own terms, such laws have not reliably served as the “powerful network” that the Garcetti Court assured would protect whistleblowers in lieu of robust first amendment protections.¹¹⁴ For example, at the time that the Court decided Garcetti, federal whistleblower protection law contained the same hole that

Garcetti created in constitutional coverage—namely, it did not encompass speech made as part of one’s job.¹¹⁵

The First Amendment and State and Local Employees

Although state and local employees can invoke their First Amendment rights directly, those rights have been narrowed considerably by courts, particularly through the government speech doctrine and Garcetti. Furthermore, as we have seen, the notion underlying a broad government speech doctrine—that public employee speech is rightly, even necessarily subject to political control—also has substantial political currency. That political appeal—coupled with legislators and executive officers feeling emboldened by the state of the case law—have helped give rise to a number of restrictive policies, ranging from sweeping public employee gag rules to legislation micro-managing the classroom speech of public school teachers. In this Section, I discuss three examples of such measures: post-hoc discipline for employee speech, prior restraints on employee communications with the media, and laws targeting public school educators in particular.

First, Garcetti and some lower court interpretations of it negatively impact substantive accountability by opening the door to retaliation for two categories of speech: employee reports of wrongdoing and employee communications on matters of public interest in the course of doing their jobs. The latter requires little explanation, as Garcetti explicitly permits discipline for speech that constitutes work product, however truthfully and competently performed. The former also follows plainly from Garcetti to the extent that catching and reporting on internal wrongdoing is a part of one’s job. Furthermore, although lower court interpretations of Garcetti are not monolithic, some define job duty speech broadly enough to capture a good deal of such whistleblowing. For example, some courts treat the fact that an employee reported wrongdoing through their “chain of command,” or through some other avenue that lacks a “civilian analogue,” as evidence that the report fell within their job duties.¹¹⁶ Some courts accord the same meaning to the fact that an employee’s speech is directed toward resolving problems that interfere with their duties.¹¹⁷ Furthermore, despite contrary language in a 2014 Supreme Court case,¹¹⁸ some lower courts have treated the fact that an employee learned about information on the job as a factor that weighs against First Amendment coverage should they face discipline for communicating it.¹¹⁹

Second, although there is a sound basis to conclude that Garcetti does not license agencies to impose sweeping prior restraints on employee speech,¹²⁰ and some courts indeed have struck down such policies,¹²¹ there remain scores of federal, state, and local directives that bar employees across multiple agencies from speaking to reporters without authorization. A 2019 report by the Brechner Center for Freedom of Information at the University of Florida found “dozens of examples of policies that either forbid government employees from speaking to journalists at all, or require that they obtain a supervisor’s permission before doing so.”¹²² Such policies persist in part because “Garcetti fueled a mindset among government managers and their counsel that the courts would view restrictions on employee speech deferentially.”¹²³ The political currency of the notion underlying Garcetti and government speech doctrine more broadly—that agency employees can be made to speak in one voice, dictated by political leadership—plays an important role as well.

Third, over the past several years, public school teachers—college and university professors as well as K–12 instructors—have faced a host of state laws barring them from conveying certain ideas about race or gender in the classroom.¹²⁴ State and public school board defendants have leaned heavily on the government speech doctrine to justify the laws. To defend its restrictions on the instructional speech of public college professors, for example, the state of Florida asserted that the First Amendment “categorically does not apply” because such communications constitute “heartland government speech.”¹²⁵ Defendants have also invoked accountability to bolster their government speech arguments. In the Florida litigation, for example, the state argued that anyone displeased with the restrictions on professorial speech could seek recourse “[at] the ballot box.”¹²⁶ The laws’ proponents similarly invoke political accountability in their appeals to the public. For example, Nate Hochman, writing in the Manhattan Institute’s City Journal, characterized critics as “suggest[ing] that public educators should be insulated from accountability and democratic oversight.”¹²⁷ Judicial responses to lawsuits challenging such restrictions have been mixed thus far. In cases involving college and university professors, courts have sided with plaintiffs, identifying an academic freedom exception to Garcetti that I discuss further in Part IV.¹²⁸ Courts have been less favorable to plaintiffs in the K–12 educational setting, concluding that primary and secondary school teachers are subject to Garcetti’s rule.¹²⁹ In the latter cases, however, plaintiffs have had some success in arguing that the laws are too vague to pass constitutional muster.¹³⁰

IV. Some Kernels of Hope

Although both UE theory and government speech doctrine have made substantial strides in the courts and the political branches, they are not invulnerable to limiting principles. Indeed, courts already have imposed or laid the groundwork for some boundaries on each doctrine’s reach. These aspects of precedent can, and should, be built on with substantive accountability among the lodestars in the process. I have explored these points in more detail elsewhere,¹³¹ and highlight a few aspects here.

Turning first to UE theory, there are a few respects in which the current case law leaves the door open for some substantive accountability-based limits. For example, the Supreme Court has not, as of yet, weighed in on the constitutionality of civil service protections. Indeed, Chief Justice John Roberts, writing for the Court in a 2010 case, noted that “[n]othing in [its] opinion . . . should be read to cast doubt on the use of what is colloquially known as the civil service system within independent agencies.”¹³² Roberts observed that many civil servants “would not qualify as ‘Officers of the United States’ who ‘exercise significant authority pursuant to the laws of the United States;’ ” accordingly, they may not “be subject to the same sort of [presidential] control.”¹³³ In a future case, the Court could decide the question that it has left open and affirm the constitutionality validity of civil service tenure protections. To its reasoning about the limited scope of civil servants’ roles, the Court might add one about the work that they do perform. Namely, much of it entails the production of knowledge that reflects expertise and evidence-based analysis—for example, generating scientific reports or undertaking audits or inspections. Such work creates much of the factual backdrop against which the public and other branches can judge elected officials. By guarding against political interference with knowledge production, civil service protections support substantive accountability.

Similar substantive-accountability based arguments can be made regarding other questions that the Supreme Court has not, to date, decided. This includes the constitutionality of the limited removal restrictions that currently apply to IGs and of the still more ambitious proposals to provide IGs with for-cause protection from removal.¹³⁴

As for government speech doctrine, the case law contains the seeds of an important limiting principle that I call the anti-distortion doctrine. It amounts to a wariness of conditions on state-sponsored knowledge production that would distort the nature of the sponsored programs or their communicative outputs. Perhaps the most overt use of the principle occurs in the 2001 case of Legal Services v. Velazquez.¹³⁵ The Velazquez Court invalidated a law restricting the types of arguments that congressionally funded legal services attorneys could make in litigation.¹³⁶ The Court observed that Congress had funded the attorneys not to transmit government speech but rather to represent private clients.¹³⁷ Having done so, Congress could not limit the stock of arguments from which the attorneys could draw to advise and to advocate for their clients. Such a limit, said the Court, “distorts the legal system by altering the traditional role of the attorneys” as zealous advocates for their clients.¹³⁸ Among the problems with such distortion is that it “prohibits speech and expression upon which courts must depend for the proper exercise of the judicial power.”¹³⁹

Garcetti itself contains some anti-distortion reasoning. The Garcetti Court left open the possibility of an exception for the expressive work of public school academics to the general rule that work product speech is unprotected. The Garcetti Court acknowledged that “[t]here is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence.”¹⁴⁰ An academic freedom exception is necessarily grounded in an anti-distortion principle, specifically in the notion that the state may not create or fund an institution of a type ordinarily characterized by academic freedom but then curtail that freedom.

CONCLUSION

The doctrines explored here undermine substantive accountability in the name of accountability. Those attempting to limit the reach of UE theory and government speech doctrine, whether in the courts, the political branches, or the realm of public debate, must understand that their appeal lies partly in their proponents’ insistence that the doctrines do not undercut accountability but in fact protect accountability. Highlighting the errors of that claim and the danger that the doctrines pose is one small but necessary step in any efforts to staunch their forward march.

98 S. Cal. L. Rev. 1321

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Heidi Kitrosser*

* William W. Gurley Professor, Northwestern University – Pritzker School of Law. I am very grateful to Erin Miller for inviting me to participate in the symposium for which I wrote this article, to Christina Koningisor for her wonderful turn as discussant for this piece, and to the student editors of the Southern California Law Review for their terrific work in organizing the symposium and editing this piece. I owe many thanks as well to Ronnell Anderson Jones and her colloquium students at the University of Utah Law School and to the faculty at the University of North Carolina Law School for inviting me to present this paper and for their thoughtful questions and comments.

Fear and Free Speech

September 2025September 2025Helen Norton*

INTRODUCTION

Fear changes lives. And for this reason, fear sometimes changes the law.

Because of fear’s debilitating effects, the law often forbids behavior that causes its targets to fear for their physical safety. Think of the laws that prohibit threats in order to free their targets “to go about their own lives.”¹ Think too of stalking laws that restrict fear-engendering behavior that “violates basic social norms of privacy and consent by persisting even in the face of a lack of consent.”²

A different type of fear—speakers’ fear of the government’s punishment—shapes pivotal First Amendment doctrine. The U.S. Supreme Court focused on this fear in Counterman v. Colorado when it held that the First Amendment requires the prosecutor in a “true threats” case to establish the speaker’s recklessness—that is, that the speaker “consciously disregarded a substantial risk” that his statements would make his target fear for her physical safety.³ In so holding, the majority underscored that requiring such proof “reduc[es] an honest speaker’s fear that he may accidentally [or erroneously] incur liability,” thus “provid[ing] ‘breathing room’ for more valuable speech.”⁴

But this doctrinal choice is not without its costs, costs borne by the many targets of threats who lack access to evidence of the speaker’s interior mental state. This is the case, for example, of “[a] delusional speaker [who] may lack awareness of the threatening nature of her speech; a devious speaker [who] may strategically disclaim such awareness; and a lucky speaker [who] may leave behind no evidence of mental state for the government to use against her.”⁵

Free speech, of course, is not always free for everyone. A great deal of First Amendment law requires the targets of harmful speech to pay the price for the speaker’s freedom to speak and for the public’s freedom to receive that expression. To illustrate, the Supreme Court’s defamation jurisprudence sometimes requires innocent targets to bear the costs of reputation-damaging falsehoods when those targets cannot prove the speaker’s recklessness.⁶ So too did a grieving father pay, with his pain, for the protected expression of speakers who exploited his loss to amplify their religious and political views.⁷ Doctrinal choices are sometimes difficult because they require courts to pick between important, but incommensurable, values. When push comes to shove, First Amendment law generally chooses to protect speech on matters of public concern—the speech that lies at the core of the First Amendment—at the expense of its targets’ reputation and at the expense of its targets’ freedom from emotional cruelty.⁸

But different, and difficult, doctrinal choices arise when we recognize that speech interests sometimes lie on both sides of a First Amendment dispute, thus requiring courts to choose between important and commensurate values. As we will see, the fear induced by threats and by stalking can silence targets’ expression at least as directly and frequently as the fear induced by the prospect of the government’s punishment silences speakers’ expression. Consider the many targets who stop going out in public, stop using the phone, stop engaging online, stop making music and other forms of art, and stop participating in public life.⁹ Identifying free speech as a “preferred” constitutional value should thus require attention to the free speech costs of law’s failure to adequately protect the targets of threats and stalking.¹⁰

Yet an ostensibly speech-protective Supreme Court failed to acknowledge those costs in Counterman v. Colorado, a case that required it to define the contours of the category of threats unprotected by the First Amendment. “True threats” cause their targets to fear for their physical safety—and this fear, in turn, disrupts those targets’ lives.¹¹ For these reasons, the Supreme Court has long treated true threats as among the handful of speech categories entirely unprotected by the First Amendment.¹² Until Counterman, however, the Supreme Court had never directly engaged the question of how to determine when speech constitutes an unprotected threat. In the meantime, lower courts disagreed over whether the universe of unprotected threats should be determined through a subjective, or instead, an objective inquiry. Some took a subjective approach, requiring the prosecution (or, in a civil case, the plaintiff) to prove that the speaker intended to make his target fear for her physical safety, thus privileging defendants’ speech interests.¹³ A majority of lower courts instead approached the problem from the target’s perspective, adopting an objective approach that asked whether the speaker’s statement would cause a reasonable person in the target’s position to fear for their physical safety, thus privileging targets’ interests—including, but not limited to, their speech interests.¹⁴

The Supreme Court resolved this question in Counterman by requiring a subjective standard, holding that speech communicating a serious intent to commit unlawful violence constitutes an unprotected “true threat” only when the prosecution can prove the defendant’s recklessness—in other words, the defendant’s conscious disregard of the risk that his statements could make his target fear for her physical safety.¹⁵ The Counterman Court justified this choice as speech-protective, emphasizing that speakers’ expression might be chilled if they fear punishment under a legal standard too quick to view their speech as threatening.¹⁶

But this was not the only speech-protective choice available to the Court. In choosing to privilege the defendant’s speech over the target’s reasonable fear for their physical safety, the majority also effectively chose to privilege the defendant’s speech over the target’s expression. And just as the public loses valuable speech when the prospect of governmental punishment deters speakers from speaking, so too does the public lose valuable speech when the law permits the silencing of targets’ speech.¹⁷

To be sure, we should worry about doctrinal choices that deter valuable speech by making a potential speaker fear that the government will punish them for what they intended as a joke or as political rhetoric. Recall, for example, eighteen-year-old Robert Watts, who was convicted of threatening President Lyndon B. Johnson during the Vietnam War for saying to laughing listeners at a political rally on the Washington, D.C. Mall that “I have already received my draft classification as 1–A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L. B. J.”¹⁸ The Supreme Court overturned Watts’s conviction, holding that his speech constituted “political hyperbole” rather than a “true threat” against the president.¹⁹

At the same time, however, we should also worry about doctrinal choices that enable the silencing of targets’ expression by insufficiently protecting those targets from reasonable fear for their physical safety. Think now of musician C.W., the victim in Counterman, who received hundreds of disturbing messages from a complete stranger who repeatedly resisted her efforts to block him. As a result, C.W. stopped walking alone, stopped attending public events, and canceled her own public musical performances.²⁰ Think too of the many threats to journalists and election officials that silence and suppress their work foundational to a free and fair democracy.²¹ The speech-silencing effects of fear-inducing speech are by no means limited to artists and journalists: they extend to all targets, because all are potential speakers.

Courts often resolve difficult First Amendment disputes—including that in Counterman, which called upon the Court to define the contours of a category of unprotected speech—by concluding that the defendant’s speech interests outweigh the target’s substantial but incommensurate interests in reputation or peace, among other values. But threats and stalking cases present even greater challenges for those who consider speech to be a preferred value because commensurate speech interests lie on both sides of these disputes.

The First Amendment issues triggered by the regulation of fear-inducing speech thus require hard choices between speakers’ and targets’ free speech interests, choices that also affect the public’s access to valuable speech. This Article both criticizes the Court’s approach in Counterman and offers a guide to addressing targets’ expressive interests in threats and stalking cases after Counterman. More specifically, it seeks to foster a mindset for considering the First Amendment problems involving fear-inducing speech that attends to targets’ expression as much as defendants’ expression. To this end, it examines the ways in which threats and stalking can silence targets’ speech and deter their participation in public life, and then considers available choices that attend to targets’—not just defendants’—expressive interests.

I. Fear on Both Sides, Speech on Both Sides

This Part starts by describing concerns that fear of government punishment will cause speakers to censor themselves, thus “chilling” their speech. It then explains how the fear induced by threats and stalking can cause their targets to engage in self-censorship of their own.

A. Speakers’ Fear of the Government

“A chilling effect,” Frederick Schauer explained, occurs “when individuals seeking to engage in activity protected by the first amendment are deterred from so doing by governmental regulation not specifically directed at that protected activity.”²² In other words, concerns about chilling effects anticipate that government’s efforts to modify some unprotected behavior will inadvertently chill protected behavior. As Leslie Kendrick observed, “intuition suggests that some legal rules will chill speech. The further a law encroaches on protected speech, the greater the risk that such speech will be penalized. The more likely speakers are to be penalized, the less they will speak.”²³

Because chilling effects harm speakers—and the rest of us, too—by stifling the delivery of opinions, facts, and ideas, the Court’s instrumental concerns about chilling effects not infrequently drive its doctrinal choices.²⁴ Under its defamation jurisprudence, for example, the more valuable the speech potentially chilled by the prospect of defamation liability, the higher the bar for proving the mental state required to establish such liability.²⁵ This doctrine thus requires defamation plaintiffs who are public officials or public figures to show that a speaker made a defamatory statement with “ ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not”—before they can establish the speaker’s liability for reputation-damaging falsehoods.²⁶ The Court has explained this doctrinal innovation as necessary to ensure breathing space for speech critical of those in the public eye or otherwise on matters of public concern—the speech at the core of the First Amendment.²⁷

In the same vein, the Counterman Court explained its doctrinal choice as “based on fear of ‘self-censorship’—the worry that without such a subjective mental-state requirement, the uncertainties and expense of litigation will deter speakers from making even truthful statements.”²⁸ In explaining its decision to require the prosecution in a “true threats” case to show the defendant’s reckless mental state, the Court catalogued the ways in which the prospect of the government’s punishment can chill a speaker’s expression by instilling fear of various consequences: “The speaker’s fear of mistaking whether a statement is a threat; his fear of the legal system getting that judgment wrong; his fear, in any event, of incurring legal costs—all those may lead him to swallow words that are in fact not true threats.”²⁹

True, so far as it goes. But nowhere did the Counterman majority similarly detail targets’ fear for their physical safety and the resulting costs of such fear—costs that include the silencing of their speech along with many other life disruptions. The silencing of targets’ speech harms the general public, too, by denying it the expression that targets would otherwise deliver.³⁰ The majority instead simply noted the “profound harms” imposed by threats without specifying those harms.³¹

Judges (like other human beings) sometimes mask the difficulty of hard trade-offs—making those trade-offs feel considerably easier than they actually are—by failing to identify and weigh the costs of their choices. As Mary Anne Franks observed, courts’ “concern about chilling effects tends to be highly selective.”³² Indeed, even as the Counterman majority described

itself as balancing competing interests, it particularized only speakers’ interests.³³

The majority’s choice may have been motivated not only by its instrumental concerns about chilling defendants’ expression but also by deontic commitments to punish only morally blameworthy speakers. In this vein, the majority described “reckless defendants” as “morally culpable” because they “have done more than make a bad mistake. They have consciously accepted a substantial risk of inflicting serious harm.”³⁴ But moral principles cut both ways here, too, as the targets of threats themselves are often entirely innocent victims who experience life-changing harm regardless of the speaker’s mental state. Think again of C.W., the victim in Counterman whose daily existence and musical career were “upended” by hundreds of disturbing messages from a man she had never met.³⁵ Think too of journalists and election officials targeted by threats who live in fear for their, and their families’, safety for simply doing their jobs—jobs foundational to a functioning democracy.³⁶ That we can identify deontic as well as instrumental concerns on both sides of these disputes adds to the difficulties in deciding them, difficulties that judges should not obscure.³⁷

B. Targets’ Fear for Their Physical Safety

Threats and stalking are related but distinct in important ways. I use the term “threat” to mean speech that causes its target to fear for their physical safety.³⁸ And by “stalking,” I mean repeated and unwelcome conduct, contact, or communication that causes its target fear or other severe emotional distress.³⁹ Both threats and stalking can inflict life-disrupting fear. But they often do so in different ways: all threats, by definition, involve speech, while stalking sometimes involves only conduct, sometimes only speech, and sometimes a mix of the two.⁴⁰ And although a speaker may be held liable for a single threatening statement or for many, stalking laws impose liability only for “repeated” unwelcome conduct, contact, or communication.⁴¹

Fear for one’s physical safety literally changes lives—and not for the better, as fear is among the most debilitating of human experiences. Consider psychologist Abraham Maslow’s hierarchy of human needs.⁴² Foundational to this hierarchy is our need for physical survival in the form of food, water, shelter, and physical security: only when this need is satisfied can we pursue higher-level social and emotional needs like intimacy, belonging, self-esteem, confidence, and more.⁴³ For these reasons, requiring a target to pay for a defendant’s free speech with fear for their physical safety exacts a significantly higher price than requiring them to pay for a defendant’s free speech with their reputation or with their freedom from emotional cruelty.

Fear-inducing speech inflicts harm both physical and mental. One study, for example, reported “high levels of psychopathology among stalking victims,” whose overall psychological distress was about three times higher than that of the general population.⁴⁴ Medical evidence demonstrates the life-changing effects of chronic fear that include insomnia and sleep disruptions,⁴⁵ immune system dysfunction,⁴⁶ gastrointestinal issues like ulcers and irritable bowel syndrome,⁴⁷ sexual dysfunction and decreased fertility,⁴⁸ and accelerated aging.⁴⁹ Medical evidence also establishes that chronic fear is associated with generally poor mental health,⁵⁰ with mental health injuries that include anxiety,⁵¹ depression,⁵² post-traumatic stress disorders,⁵³ panic and obsessive compulsive disorders,⁵⁴ impaired formation of long-term memories,⁵⁵ and suicidal ideation.⁵⁶ One study found that those who reported higher levels of fear were 50% more likely to show signs of a mental health disorder and 90% more likely to have symptoms of depression than those who reported lower levels of fear.⁵⁷

Moreover, the targets of threats and stalking often fear for their physical safety for very good reason. Criminal justice scholar Mary Brewster, for instance, canvassed the experiences of victims of intimate partner violence to conclude that threats served as “a strong and statistically significant predictor of violence.”⁵⁸ By causing targets to fear for their physical safety, threats and stalking not only inflict physical and mental health injuries, but also change the ways in which those targets live their lives.⁵⁹ Stalking, for instance, often forces its targets to miss work,⁶⁰ to leave their jobs, or their homes.⁶¹

Most relevant to this Article, threats and stalking also change their targets’ lives by causing them to speak less, to speak differently, and to participate less in public life. Indeed, the targets of threats and stalking commonly, and reasonably, respond to threats to their physical survival by making themselves silent and invisible.⁶² To illustrate, recall the musician’s experience in Counterman: C.W. stopped walking alone, stopped attending other musicians’ events, and canceled her own performances.⁶³ Danielle Keats Citron explains how stalking silences protected expression more generally:

[Cyber stalking victims] stop using their phones. Victims change how they express themselves; they are less controversial, more muted, and connect with fewer people. Their withdrawal from online engagement isolates them from friends and family. When victims change their phone numbers to prevent stalkers from calling them, they become unreachable.⁶⁴

Consider too the many journalists targeted by threats of death or rape. One recent study found that one in ten journalists surveyed had been threatened with death in the preceding year because of their work;⁶⁵ another found that three quarters of female journalists surveyed reported that “they had experienced online abuse, harassment, threats, and attacks.”⁶⁶ These threats interfere with journalists’ watchdog and educator functions,⁶⁷ inflicting injury not only to their individual targets, but also to a public’s hopes for a healthy democracy. Free press scholar Erin Carroll has detailed more specifically how threats inhibit and distort the reporting that journalists produce and that the public thus receives:

Obstruction operates on at least three levels: the story, the beat, and the pipeline. At the story level, threats and abuse prevent journalists from covering particular events or incidents. At the beat level, perpetual abuse around broad topics like politics, economics, and immigration dissuades reporters from aggressively covering these beats or even covering them at all. At the pipeline level, violence leads reporters to leave or consider leaving the profession entirely.⁶⁸

Illustrating these dynamics more specifically, one study found that 37% of female journalists who reported that they had been threatened, harassed, or attacked indicated they avoided certain stories; 8% changed the content or perspectives of the news that they write about; 16% considered requesting a transfer or different beat and 6% requested a transfer or different beat; and 29% indicated the threats and attacks they received made them think about getting out of the profession.⁶⁹

As additional examples, threats against election officials deter those officials from doing work necessary to the democratic self-governance at the core of the First Amendment. A nationwide study of local election officials found that more than one in three of those surveyed reported that they have experienced threats, harassment, or abuse because of their work; more than half reported that they worry about their colleagues’ safety; more than a quarter worried about their own physical safety; and more than a third reported that they knew of local election officials who had left their jobs at least in part because of fear for their safety.⁷⁰ Not surprisingly, many local jurisdictions now report high levels of turnover among their election officials.⁷¹

II. Attending to Targets’ Free Speech Interests in Threats and Stalking Cases

As Frederick Schauer observed, courts often choose to err on the side of overprotecting defendants’ speech when crafting First Amendment doctrine:

The chilling effect doctrine reflects the view that the harm caused by the chilling of free speech (or other protected activity) is comparatively greater than the harm resulting from the chilling of the other activities involved. And, the logical and necessary mandate of the chilling effect doctrine is that legal rules be formulated so as to allocate the risk of error away from the preferred value, thereby minimizing the occurrence of those errors which we deem the most harmful.⁷²

The Counterman majority made precisely this choice when it required proof of a speaker’s recklessness as predicate to identifying a “true threat” unprotected by the First Amendment.⁷³

Again, that is a choice—but by no means the only justifiable, and speech-protective, choice. Because speech interests lie on both sides of threats and stalking cases, those cases require courts to choose not only whether to prefer speakers’ expression over incommensurate harms experienced by targets (like harms to their mental and physical health and their quality of life) but also whether to protect the speaker’s expression at the expense of the target’s expression. This Part considers possibilities for treating targets’ and speakers’ expressive interests in threats and stalking cases with at least the same regard.

A. The First Amendment Argument for Symmetrical Concern for Speakers’ and Targets’ Expressive Interests in Threats Cases

Neither the Counterman majority nor Billy Counterman’s own briefing offered any evidence that anyone’s speech—much less Counterman’s—had been chilled by an objective listener-centered approach (like Colorado’s) for identifying unprotected true threats.⁷⁴ As dissenting Justice Barrett observed, “objective tests are effectively the status quo today, yet Counterman still struggles to identify past prosecutions that came close to infringing on protected speech.”⁷⁵ Nevertheless, concern about the law’s chilling effect—that is, the “overdeterrence of benign conduct that occurs incidentally to a law’s legitimate purpose or scope”⁷⁶—is legitimate, indeed intuitively powerful, as a background assumption about how the world works.⁷⁷ For this reason, the Counterman majority was not wrong to worry about chilling effects even absent anecdotal or empirical evidence of chilling.

But courts committed to robust free speech protections should also credit the equally valid premise that a legal standard that fails adequately to protect the targets of threats and stalking will enable the silencing of targets’ speech. Indeed, the First Amendment case for attending to targets’ free speech interests is at least as strong as that for attending to chilling concerns given that targets’ fear for their physical safety demonstrably deters their expression.⁷⁸ Just as a speaker’s First Amendment defense need not include evidence that their—or anyone’s—speech was chilled by the prospect that they could be held liable for objectively terrifying statements, a prosecutor or plaintiff need not prove that the target’s—or anyone’s—speech was silenced by their reasonable fear for their physical safety. In short, when developing and applying First Amendment doctrine, courts should weigh the free speech costs borne by the targets of threats and stalking as heavily as the free speech costs borne by speakers chilled by the prospect of the government’s legal action.

The First Amendment argument for this approach gathers additional force when we recognize that targets of threats and stalking cannot meaningfully rely on the traditional self-help remedies of counterspeech and avoidance.⁷⁹ For example, only 9% of stalking victims surveyed who tried to discourage their stalkers reported that their engagement improved the situation.⁸⁰ A target’s engagement with a stalker through counterspeech can aggravate and escalate the stalker’s behavior⁸¹ and can fuel a stalker’s delusions of an actual relationship with the target by “gratify[ing] the stalker’s wishes to have, and to hold onto, a relationship and reinforc[ing] the pursuit.”⁸² For these reasons, targets are often counseled not to engage with stalkers.⁸³ Nor, due to limited resources, can many targets protect themselves through avoidance. “[M]oving to a new home or changing jobs or schools to avoid threatened violence are less likely to be options for domestic violence victims than for other threat victims,” legal scholar Jessica Miles explains.⁸⁴

A target-centered approach is not without precedent, as the Supreme Court sometimes chooses to shape categories of less-protected speech in ways that privilege listeners’ interests when those listeners cannot protect themselves from harmful speech through rebuttal or escape: this is often the case when speakers enjoy advantages of information or power (or both) over their listeners.⁸⁵ Recall the Court’s defamation jurisprudence, which requires public officials and public figures to show a speaker’s recklessness (in other words, “actual malice”) before imposing liability for that speaker’s reputation-damaging falsehoods, while relaxing the showing required of private-figure plaintiffs with less ability to remedy reputational harm themselves through counterspeech. More specifically, the Court enables private figures to recover presumed and punitive damages for defamatory falsehoods on matters of private concern without any showing of the speaker’s recklessness.⁸⁶ While this more target-friendly choice rests in great part on the lower First Amendment value of reputation-damaging falsehoods that do not address matters of public concern, it also turns on private figures’ more limited ability (compared to public officials) to protect their reputational interests through rebuttal:

Public officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy. Private individuals are therefore more vulnerable to injury, and the state interest in protecting them is correspondingly greater.⁸⁷

When balancing speakers’ expressive interests against private figures’ non-speech (that is, reputational) interests for defamation purposes, the Court thus requires targets to prove no more than a speaker’s recklessness—and sometimes only their negligence. More powerful still is the First Amendment argument for privileging targets’ free speech interests over those of speakers’, especially when those targets cannot meaningfully protect themselves through the traditional self-help remedies of exit and voice. In other words, although recklessness might be an appropriate First Amendment compromise in threats cases if courts were simply balancing defendants’ speech interests against targets’ incommensurate non-speech interests in health and quality of life, recklessness is a much less obvious First Amendment choice if we attend to both parties’ speech interests.

As an illustration, consider the Court’s listener-centered understanding of the First Amendment that treats “false or misleading” commercial speech as entirely unprotected by the First Amendment because of the harm it inflicts on targets’ (consumers’) First Amendment interests in making informed and autonomous decisions regardless of the commercial speaker’s mental state.⁸⁸ This listener-centered approach also recognizes that consumers cannot meaningfully protect themselves from these informational harms, because commercial actors have considerably greater access to accurate information about their own goods and services than do consumers.⁸⁹ For these reasons, many false advertising laws have long prohibited false or misleading commercial speech—regardless of the commercial speaker’s mental state—because of the harm posed to consumers as the targets of such speech.⁹⁰

Because fear—and speech—are on both sides of threats and stalking cases, a robust understanding of the Free Speech Clause supports a standard similarly attentive to targets’ expressive interests. To be clear, my point is not that the First Amendment necessarily requires a listener-centered standard when the free speech interests of speakers and their targets collide. But neither does the First Amendment require a speaker-centered standard when we must choose between speakers’ and targets’ expression. I suggest instead that the First Amendment permits—indeed, supports—governmental choices to privilege targets’ free speech interests in certain settings. To this end, I urge that the First Amendment doctrine of threats and stalking cases treat the free speech costs borne by speakers and targets with at least equal concern. This symmetrical concern for speakers’ and targets’ expression in threats cases recognizes that objective listener-centered standards advance free speech as least as much as subjective speaker-centered standards. This approach thus understands the First Amendment to permit legislatures or courts to choose from a range of speech-protective standards such that the Counterman Court was wrong to deny Colorado’s Supreme Court that choice.

What might this symmetrical concern look like in practice? The rest of this Article identifies some possibilities.

B. The Counterman Court’s Missed Opportunity: Defining Unprotected True Threats Through an Objective Target-Centered Standard

Start with the road not taken by the Counterman majority: the Colorado Supreme Court’s objective target-centered approach for identifying unprotected true threats. Developed in a case involving high school students’ heated late-night Twitter (now known as “X”) argument shortly after a local school shooting, that context-driven standard required courts to consider the surrounding circumstances to determine whether “an intended or foreseeable recipient would reasonably perceive [the statement(s)] as a serious expression of intent to commit an act of unlawful violence.”⁹¹ In my view, this test treated speakers’ and targets’ free speech interests with equal concern by requiring courts to consider multiple factors that attend to both sets of interests.⁹² These factors included:

The statement’s role in any broader exchange or events—for example, whether the statement “was spontaneous or [instead] responsive to some other communication,” where statements that matched the “overall tone” of a conversation in which it joined were less likely to be experienced as objectively terrifying.⁹³
The medium or platform through which the statement was communicated (including any “distinctive conventions or architectural features”)—where, for example, “prevailing norms in a particular genre” or forum might “recast violent language in a less threatening light.”⁹⁴
The manner in which the statement was conveyed (“e.g., anonymously or not, privately or publicly”⁹⁵)—in which, depending on the context, the speaker’s anonymity and the choice to personally target the statements rather than direct them to a large public audience might cause a reasonable target to experience the statements as threatening.
Any relationship between the speaker and target—including any history of violence, the speaker’s awareness of the target’s particular vulnerabilities, or the target’s awareness of the speaker’s patterns of speech or emotional state.⁹⁶
The audience’s subjective reaction: Contrast Watts v. United States, in which the Court relied in part on the audience’s laughter to identify a statement as protected political hyperbole rather than an unprotected threat⁹⁷with statements that prompt their audience to report their concerns about potential violence with law enforcement or trusted adults.⁹⁸

C. Target-Attentive Approaches to Threats Cases After Counterman

Unless and until the Court chooses to revisit its decision in Counterman, however, an objective context-driven standard is precluded in threats cases, which now require prosecutors and plaintiffs to establish a speaker’s recklessness before imposing criminal or civil punishment.⁹⁹ That the same First Amendment standard applies to both criminal and civil law settings (like civil protection orders) only raises the expressive stakes of this requirement.¹⁰⁰ Counterman and its limitations now present new choices among available approaches, some more attentive to targets’ free speech interests than others.

First, because Counterman establishes recklessness as a First Amendment floor and not a ceiling,¹⁰¹ legislatures remain free to impose even higher levels of mens rea (like intent or knowledge) as a condition of criminal or civil liability. And some do.¹⁰² But Counterman does not require legislatures to so choose. Attention to targets’ free speech interests thus supports the legislative choice, consistent with free speech values, not to require any subjective mental state greater than recklessness, which already leaves targets unprotected in the many threats cases in which targets lack access to evidence of the defendant’s interior mental state.¹⁰³

Second, courts’ recklessness determinations in threats cases can sometimes be informed by targets’ experiences. The Counterman majority articulated its recklessness standard as focused on the defendant’s “insufficient concern with risk, rather than awareness of impending harm.”¹⁰⁴ As the Court explained in an earlier decision, “[t]hat risk need not come anywhere close to a likelihood. Speeding through a crowded area may count as reckless even though the motorist’s ‘chances of hitting anyone are far less [than] 50%.’ ”¹⁰⁵ To demonstrate a defendant’s conscious disregard “of a substantial risk” that his statements would cause his target to fear for her physical safety, prosecutors and plaintiffs may present circumstantial evidence of recklessness—that is, evidence that the defendant ignored “obvious” risks or knew of facts that would have made the danger obvious to someone in the defendant’s situation.¹⁰⁶ To be sure, the defendant remains free to introduce evidence that they were unaware of risks that others would find obvious.¹⁰⁷ Whether these risks are obvious to the defendant can sometimes be informed by the target’s experience and behavior. For instance, a defendant’s awareness that his target had repeatedly blocked his calls, texts, or other messages—an awareness perhaps demonstrated by his creation of new accounts from which to message his target—can show that he was aware of “obvious” risks that his target experienced his communications as threatening. So, too, could his awareness that his target had changed her expressive (or other) behavior in response to his statements.¹⁰⁸

Of course, a target could ensure that a speaker was aware of this risk by telling him that she experienced his statements as threatening—but, as discussed above, such engagement can itself be existentially dangerous.¹⁰⁹ This remains among Counterman’s major deficits in choosing a recklessness inquiry focused on the defendant’s interior mental state rather than threats’ speech-silencing effects on their targets.

D. Target-Attentive Approaches to the Many Stalking Cases That Do Not Involve Threats and Where Counterman Thus Does Not Apply

As explained above, stalking laws protect targets from speech-silencing and life-disrupting fear in ways related to, but distinct from, the protections offered by threats laws.¹¹⁰ While threats laws address speech that causes its target to fear for their physical safety, stalking laws address fear induced by repeated and unwelcome conduct, contact, or communication. Many stalking cases thus do not, and need not, turn on any allegedly threatening content of the speaker’s communications. In those cases, the default First Amendment rules apply—not Counterman’s recklessness requirement.¹¹¹ Nevertheless, because Counterman addressed threats in the context of a stalking case, the danger remains that courts will inappropriately apply its recklessness standard to stalking cases that do not involve threats.¹¹²

So the first step in attending to stalking targets’ free speech interests is to make sure that courts understand that Counterman’s recklessness requirement does not apply to stalking cases that do not allege unprotected true threats.¹¹³ The second step is to engage targets’ free speech interests when applying the appropriate First Amendment analysis in the many stalking cases that do not involve threats—and where the free speech costs to the target remain substantial while the defendant’s expressive interests are low (since the repeated and unwelcome nature of stalking, rather than its content, often induces fear).¹¹⁴

To illustrate how courts’ assessment of First Amendment challenges to the enforcement of anti-stalking laws can attend to targets’ free speech interests, consider the following fact patterns:

Defendant (D) repeatedly follows and watches Target (T) as they walk to and from their car to their office, gym, grocery store, and home;
D calls T every morning and hangs up as soon as they answer;
D calls T every morning and says, “Hello, beautiful” when T answers; and
D calls T every morning and says, “Die” when T answers.

Each of these fact patterns involves repeated and unwelcome behaviors that, depending on the circumstances, could cause a reasonable person to experience fear and thus violate a state’s stalking statute.¹¹⁵ But some of the fact patterns do so in ways that involve no communication—or if they do involve communication, they do so regardless of the communication’s content.

In short, as this Section explains, the government’s prosecution of conduct normally triggers no First Amendment review. If a defendant nevertheless seeks to challenge the prosecution of conduct on First Amendment grounds, the defendant would have to establish that their conduct was sufficiently expressive to warrant First Amendment protection. If a court determines the conduct to be expressive, then intermediate scrutiny applies. If a defendant challenges the content-neutral prosecution of speech (for example, repeated and unwelcome communications regardless of any threatening content), then again intermediate scrutiny applies. These analyses can, and should, foreground targets’, as well as speakers’, free speech interests.

Stalking That Takes the Form of Conduct Only

Fact patterns A (repeatedly following and watching the target) and B (repeatedly dialing the target’s phone number and hanging up without speaking) involve stalking that takes the form of repeated unwelcome conduct, not speech, since the speaker makes no oral or written communication. Consider these additional illustrations of such courses of conduct: a speaker that “send[s] envelopes of unknown white powder to the victim in the mail;” “repeatedly infect[s] the victim’s computers with viruses;” “open[s] unwanted on-line dating profiles under the victim’s identity;” or “arrange[s] every day for deliveries to be made at the victim’s home at all hours of the night.”¹¹⁶

Here, the government seeks to regulate what the defendant did, not what they said.¹¹⁷ (As Genevieve Lakier and Evelyn Douek explain, “the term stalking was borrowed from the hunting context to emphasize the similarities between the way a hunter stalks their prey and the practices of surveillance and following that characterized the first well-publicized stalking cases.”¹¹⁸) Stalking laws thus frequently address conduct with only incidental burdens on expression—triggering (and generally satisfying) no more than intermediate scrutiny.

More specifically, the First Amendment analysis of the government’s regulation of such repeated and unwelcome conduct should either be rational basis review (if the court determines the conduct to be nonexpressive) or intermediate scrutiny (if the court determines the conduct to be expressive).¹¹⁹ Determining whether regulated conduct is sufficiently expressive to trigger intermediate scrutiny generally turns on whether the actor intends to communicate a message through their conduct and whether onlookers reasonably understand the actor to be delivering a message through their conduct.¹²⁰

When a speaker repeatedly follows and watches their target, do they intend to communicate a message, and does their target understand them to be communicating a message? If, depending on the facts, the answer is “no,” deferential rational basis review will apply to the government’s enforcement.¹²¹ Perhaps some will take the view, however, that this conduct is expressive. For example, a speaker who repeatedly calls and hangs up on their target without saying anything (maybe only breathing heavily) might seek to send, and might be understood as communicating, a message of possessiveness, hostility, or even love toward the target such that application of the stalking law regulates repeated and unwelcome conduct that incidentally burdens expression.¹²² Here, too, the First Amendment analysis should remain attentive to the target’s expressive interests. For example, the application of stalking law to this conduct satisfies intermediate scrutiny when the government’s regulatory interests are unrelated to the suppression of ideas and when the enforcement action instead seeks to address the life-disrupting—including speech-silencing—effects of conduct that has little if any First Amendment value of its own.¹²³

The Supreme Court’s analysis of First Amendment challenges to the enforcement of hate crimes laws to punish certain acts of violence illustrates these dynamics. Even when a defendant’s violence might seek to communicate, and be understood as communicating, a message of hatred based on the target’s protected class status, the Court has described hate crimes laws as the government’s constitutionally permissible regulation of conduct.¹²⁴ Along the same lines, the Court has stated that the First Amendment poses no bar to the government’s regulation of verbal harassment in the workplace that “produce[s] a violation of Title VII’s general prohibition against sexual discrimination in employment practices.”¹²⁵ In these cases, the Court did not state whether the regulated conduct—violent hate crimes and workplace harassment—was sufficiently expressive to trigger intermediate scrutiny, suggesting instead that the conduct did not merit First Amendment protection regardless of the review applied.¹²⁶ Lower courts have taken similar approaches, for example, when holding that laws prohibiting the physical obstruction of reproductive health care facilities to ensure access to lawful health care services satisfy intermediate scrutiny even though the regulated obstruction may seek to communicate a message and be understood as communicating a message.¹²⁷

Stalking That Takes the Form of Communications That Instill Fear Regardless of Their Content

Turn next to stalking prosecutions of communications that cause fear because of their repeated and unwelcome nature—in other words, because of those communications’ frequency, volume, or persistence rather than their content.¹²⁸ This can be the case, for example, of fact pattern C, where the defendant called the target every day with prosaic messages like “Hello beautiful.” Or by leaving a daily message on the target’s answering machine playing the target’s favorite song. Along the same lines, consider a speaker who made:

“multiple [phone calls] throughout the evening, often ‘back-to-back,’ ” and “into the early morning hours,” despite being told that he “needed to stop calling” and “I don’t want you calling this house anymore.” When the complainant unplugged her phone, the defendant then called each of her parents and he was again told not to call. A few days later, he showed up at the complainant’s apartment building and “stood outside for a couple of minutes,” until he was directed to leave by security. Then he returned the following day again, and “security informed him that he was not permitted in the building.” Several months later, he again placed “nonstop calls” to the complainant from 1:30 a.m. to 3:00 a.m., and during that time he again showed up to the complainant’s apartment and tried calling her from the apartment’s call box. He then tried sneaking into the apartment building to get to the complainant, but was again thwarted. Notice that we have not said one word about the content of the defendant’s speech . . . because it was immaterial to his stalking conviction. He could have been trying to sell his victim a vacuum cleaner and the above actions would still have amounted to stalking.¹²⁹

The content-neutral regulation of such repeated and unwelcome communications again triggers intermediate scrutiny, in which courts again assess whether the restriction is narrowly tailored to serve a significant government interest. Courts undertaking this intermediate scrutiny consider, among other things, whether the government’s content-neutral regulation leaves open ample alternative means of expression.¹³⁰ Moreover, the Supreme Court has made clear that the government’s content-neutral speech regulation “need not be the least restrictive or least intrusive means of” achieving its interests; instead, the government’s content-neutral regulation of speech satisfies intermediate scrutiny when it advances a substantial government interest that would otherwise be achieved less effectively.¹³¹

Here, too, this analysis can and should foreground targets’—not just speakers’—free speech interests. The content-neutral application of stalking law to repeated and unwelcome communications regardless of their content satisfies intermediate scrutiny when the government’s regulatory interests are unrelated to the suppression of ideas and when the enforcement action instead seeks to address the life-disrupting—including speech-silencing—effects of repeated and unwelcome communications. That the traditional self-help remedies of exit and voice are so often ineffective—and indeed, frequently dangerous—for their targets further support the enforcement of stalking law as a narrowly tailored response.

Stalking That Takes the Form of Threatening Speech

Depending on the circumstances, fact pattern D (daily messages telling the target to “die”) might support a content-neutral stalking prosecution based on the communications’ repeated and unwelcome time, place, and manner, regardless of their content. And depending on the circumstances, fact pattern D may also support prosecution as true threats, which now requires proof of the defendant’s conscious disregard of the risk that his statements were causing his target to fear for her physical safety in addition to proof of each of the statutory elements. Note that these two possibilities require prosecutors and plaintiffs, as a strategic matter, to choose between distinct theories that trigger different First Amendment analyses.¹³²

Stalking That Involves Both Conduct and Speech

The foregoing examples illustrate how the variety of repeated and unwelcome behaviors that constitute stalking can invite enforcement under different theories that trigger distinct First Amendment analyses. Some fact patterns involve repeated and unwelcome fear-inducing conduct—and, depending on the facts, that conduct may or may not be expressive. Some involve repeated and unwelcome speech that induces fear not because of its content but because of its repeated and unwelcome time, place, or manner. Some involve repeated and unwelcome speech that induces fear at least in part because of its threatening content.¹³³ And some fact patterns may involve combinations that invite prosecutors and plaintiffs to make strategic choices among multiple theories.¹³⁴ Whatever the First Amendment analysis, however, it should include attention to targets’, as well as defendants’, expressive interests.

Conclusion

Speakers who fear the prospect of the government’s punishment often express themselves less—or express themselves differently—than they would if they were not fearful. This, in turn, harms the speaker’s and the public’s First Amendment interests by stifling the delivery of opinions, facts, and ideas.

At the same time, targets fearful for their physical safety at the hands of a speaker often speak less, and speak differently, than they would if they were not fearful. And this, too, harms both the target’s and the public’s First Amendment interests.

Fear, and speech, are thus on both sides of threats cases and also many stalking cases. Courts’ doctrinal choices in threats and stalking cases sometimes chill speakers’ expression. And sometimes they instead permit the silencing of targets’ speech. A robust commitment to free speech, in my view, requires attention not only to the speech deterred by legal standards that are too quick to punish speakers but also to the speech silenced when the law fails adequately to protect the targets of threats and stalking from reasonable fear for their safety.

When courts ignore targets’ free speech interests to privilege defendants’ free speech interests, they pretend to make hard First Amendment problems easy. But principled problem-solving requires that we take care to recognize and explain what makes difficult problems difficult, as is the case here, where we must choose between speakers’ and targets’ important free speech interests.

Courts must, and do, make choices all the time when calibrating the categories of unprotected speech (for example, in true threats cases), and when otherwise applying First Amendment doctrine (for instance, in stalking cases that do not allege true threats). The Court’s choice in Counterman to privilege speakers’ free speech interests over targets’ was a choice—but that choice was neither inevitable nor necessarily speech-protective. When we illuminate, rather than obscure, the free speech injuries experienced by the targets of threats and stalking, we can identify doctrinal choices that attend to targets’ expressive interests as well as defendants’.

98 S. Cal. L. Rev. 1351

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Helen Norton*

* University Distinguished Professor and Rothgerber Chair in Constitutional Law, University of Colorado School of Law. Thanks to RonNell Andersen Jones, Nelson Tebbe, Alan Chen, Danielle Keats Citron, Yasmin Dawood, Margot Kaminski, Christina Koningisor, Margaret Kwoka, Genevieve Lakier, Lyrissa Lidsky, Toni Massaro, Joe Michaels, Francesca Procaccini, Blake Reid, Scott Skinner-Thompson, Phil Weiser, and the participants at Yale Law School’s Free Expression Scholars Conference and the University of Southern California Gould School of Law’s symposium on “The First Amendment and Listener Interests” for their insightful comments and questions. Thanks, too, to Kenzie Larrenaga, Devin Schultze, Olivia Sharp, and Claire Power Tate for outstanding research assistance.

Fintech and Techno-Solutionism

July 2025July 2025Hilary J. Allen*

Silicon Valley–style technological innovation is ill-suited to address complex problems like financial inclusion and concentrated market power, yet promises abound that “fintech” can fix them. This oversimplified reduction of complex structural problems into technological puzzles has been critiqued as “techno-solutionism,” and it poses real dangers for public policy. When we start with the tech industry’s favored tools and then ask how to solve complex problems using those tools—rather than starting by defining the problem to be solved—it can distract policymakers from supporting real, structural solutions. Techno-solutionism can also deter policymakers from interrogating the limitations, and regulating the harms, of the proffered technological solutions.

This Article argues that not only are many fintech products themselves extremely techno-solutionist, but techno-solutionism is also impeding financial regulation’s ability to protect the public from fintech’s harms. It makes several contributions: First, this Article introduces into the financial regulation literature theories of how the law can perpetuate, and then be stymied by, techno-solutionism. Second, it comprehensively calls out the techno-solutionism inherent in many fintech offerings (particularly crypto), laying bare their harms and demonstrating where they are unable to solve the problems they claim to address. Such harmful nonsolutions do not warrant accommodative regulatory treatment—and yet, some policymakers have sought to give fintech products just that. This Article’s third contribution is a detailed exploration of techno-solutionism’s impact on U.S. financial regulatory policy as it pertains to fintech. This Article also uses this lens to consider how techno-solutionism might impact the regulation of AI in financial services.

Introduction

Technology has been an integral part of finance for a long time, but the rise of “fintech” has placed Silicon Valley–style technological innovation front and center in financial services. New technologies and technology-based business models have been developed as putative solutions to the limitations of the financial system, but fintech often fails to address the problems it claims to solve. Instead, fintech tends to create new problems that remain unaddressed because of misguided assumptions that technology can fix any problem—including the ones it causes. This “mistaken belief that we can make great progress on alleviating complex dilemmas, if not remedy them entirely, by reducing their core issues to simpler engineering problems” has been dubbed “techno-solutionism.”¹ It is predicated on a reductionist worldview that sees complex problems flattened into engineering puzzles and neglects their multifaceted history and context.

This Article argues that not only are many fintech products themselves extremely techno-solutionist, but techno-solutionism is also impeding financial regulation’s ability to protect the public from fintech’s harms. Techno-solutionism is often evident in conversations about the financial applications of technologies like artificial intelligence (“AI”), blockchain, cloud computing, and application programming interfaces (“APIs”), which have been promoted as having the power to make the delivery of financial services more inclusive, more efficient, more competitive, and more secure. While there may be promise in some fintech business models, this Article explains why fintech’s ability to solve long-standing, complex problems is often oversold. This Article also explores how techno-solutionist fintech hype can distract from more meaningful solutions to long-standing problems and obscure fintech’s harms.

Fintech marketing has correctly identified many of the pain points in traditional finance, but these pain points are largely structural problems that cannot be addressed by tech-centric business models that disregard economic and political realities. In this regard, fintech solutions are emblematic of a broader techno-solutionist Silicon Valley worldview that disregards context—as Silicon Valley historian Margaret O’Mara describes it, “Why care about history when you were building the future?”² Unfortunately, despite the flimsiness of many fintech promises—and despite the harms that many fintech business models have inflicted on the public—techno-solutionist rhetoric about fintech’s potential has been stubbornly resilient. This rhetoric sets the scene for a “wait-and-see” legal environment designed to allow these technological solutions to flourish without regulatory intervention. This Article argues that such accommodative inaction is unacceptable, given how damaging financial harms (to individuals, and to the broader economy) can be, but unfortunately lawmakers and financial regulators have been encouraged to internalize a techno-solutionist perspective by the fintech businesses and venture capitalists who will profit from such accommodative legal treatment.

Techno-solutionism is not a purely private sector creation, however. Sometimes—whether through the expressive value of their words or the more concrete impacts of their action or inaction—lawmakers and financial regulators perpetuate the very techno-solutionism that will ultimately undermine their ability to protect the public from harm. If financial regulators are convinced or forced to get out of the way so that technological innovation can go ahead and fix things, then that will create a conducive environment for the fintech industry and its funders to arbitrage regulatory requirements and perhaps even harden that arbitrage into durable legal permissions (a strategy known as “regulatory entrepreneurship”).³ To illustrate these dynamics, this Article will examine examples of legislative proposals and administrative actions that highlight where techno-solutionism seems to be driving policy around fintech, as well as examples of pushback against techno-solutionism. This Article also examines nascent regulatory approaches to AI’s financial applications through this lens.

The primary aim of this Article is to identify and describe the problems that techno-solutionism creates for financial regulatory policy but that of course invites questions about what can be done to remedy the situation. Recognizing that techno-solutionism is a heuristic that probably will not be eliminated without an alternative, this Article argues that financial regulators and lawmakers should instead adopt a posture of contextually informed skepticism that draws on domain knowledge about what can go wrong in finance and is sensitive to the harms that fintech may cause. Of course, there are many structural impediments to such a shift in perspective and it will not be easily accomplished. Right now, the best that we can do may be to simply call out the phenomenon of techno-solutionism where we see it and, in doing so, rob it of some of its power.

The rest of this Article will proceed as follows: Part I will explore the concept of techno-solutionism, emphasizing its dangers for public policy as a general matter. Part I will also provide some insight into techno-solutionism’s relationship with the venture capital industry and with the law. Part II will look more specifically at fintech technologies and business models and expose the techno-solutionism inherent in fintech’s claims to improve financial inclusion, efficiency, competition, and security. Part III will explore the relationship between financial regulation and techno-solutionism, looking at legislative proposals and administrative actions relating to crypto and other fintech. Part III will also consider prospectively how techno-solutionism may impact regulation of the use of AI in financial services. Part IV suggests a posture of contextually informed skepticism as an alternative to techno-solutionism, before the final Part concludes.

I. Techno-Solutionism

A. What Is Techno-Solutionism?

In his 2023 Techno-Optimist Manifesto, leading venture capitalist Marc Andreessen stated his belief that “there is no material problem—whether created by nature or by technology—that cannot be solved with more technology.”⁴ This techno-optimist sentiment has a long heritage: in his book American Technological Sublime, David Nye recounts that technological achievements, ranging from “the first railroads, suspension bridges, skyscrapers, city skylines” to “atomic explosions, and the rockets of the space program” have been central to the American national identity for centuries.⁵ While it does not always get as much oxygen, criticism of techno-optimism is not a new phenomenon, either. Critiques of “techno-fixes” date back to the 1960s,⁶ and interrogations of “innovation worship” and the “cult of innovation” can be found at least as far back as the 2000s.⁷

In his 2013 book, To Save Everything, Click Here: The Folly of Technological Solutionism, Evgeny Morozov popularized the related critical term “technological solutionism.”⁸ Morozov intends techno-solutionism as a pejorative, one that describes the tendency to “[r]ecast[] all complex social situations either as neatly defined problems with definite, computable solutions or as transparent and self-evident processes that can be easily optimized—if only the right algorithms are in place!”⁹ Furthermore, Morozov considered techno-solutionist solutions to be “likely to have unexpected consequences that could eventually cause more damage than the problems they seek to address.”¹⁰

While solutionism itself is nothing new—people have always sought easy solutions to complex problems—Morozov was particularly interested in the solutionism associated with that nebulous thing we call “the Internet.”¹¹ Morozov argued that the internet allows solutionism to be scaled in a way that was never before possible—as he describes it: “the latest technologies make the fixes easier, cheaper, and harder to resist.”¹² In recent years, internet technologies have been coupled with increased computing power, mass data storage capabilities, and automation to make technological solutions even more powerful, cheaper, and harder to resist than in 2013. Morozov’s concern—that the way we conceptualize social problems is skewed by our desire to solve them with increasingly fancy technological silver bullets—is only becoming more relevant.

Techno-solutionism is in many ways de-contextual: it fails to investigate the context of the problem at hand and starts instead with the technological tools available to fix things.¹³ Much as too much reliance on mathematical models can cause us to focus on the risk that can be measured rather than the risk that matters,¹⁴ techno-solutionism can flatten complex problems into just the elements that lend themselves to easy technological fixes, and ignore the rest.¹⁵ Reducing problems to their technological elements can be very seductive, particularly during times of political dysfunction when solving structural problems through democratic means seems nigh on impossible. But the resulting technological solutions are typically inadequate at best, harmful at worst, because they fail to reckon with both the complexity of the issues they purport to solve and their impacts

on people excluded from the technological development process.¹⁶ Sometimes, we will be better off without the proposed technological solution; at other times, the technological solution may have merit but will be effective only as part of a package of other structural reforms, and may require strong regulation.

As an ideology, techno-solutionism also tends to cast technological development as an inevitability,¹⁷ and those who seek a more textured understanding of problems and technologies as Luddites or cranks standing in the way of progress.¹⁸ As Section I.C will explore in more detail, a techno-solutionist orientation can be weaponized to inhibit regulation of a technology’s associated harms (in particular, the complexity of the underlying technology can be weaponized to deflect oversight and restraint). More subtly, technologies that overpromise but are incomplete solutions to complex structural problems can also be distractions, alleviating political pressure for solutions to the non-technological dimensions of problems.¹⁹ As tech ethicist Elizabeth Renieris has put it, “Our imaginations and resources are once again diverted from fixing or rehabilitating what exists”²⁰: when the technological solution is pitched as so exceptional, the slow plodding changes of structural reform seem less worthy by comparison.²¹ This dynamic is sometimes evident, for example, in policy debates about climate change, where the promise of new technologies has sometimes undercut support for policies to reduce emissions.²²

While techno-solutionist solutions will rarely benefit society writ large, fighting techno-solutionism is an uphill battle. Not only is techno-solutionism highly profitable for Silicon Valley and not only does the law help entrench techno-solutionism (as the next Sections will explore), but our brains are also hardwired toward techno-solutionism to some extent. Humans have long sought easy solutions to complex problems,²³ and we are also susceptible to what are known as “automation biases”: tendencies to defer to technologically-generated outputs as more correct and legitimate than human judgments.²⁴ If we perceive the output of technology to be inherently accurate and superior to anything a human could produce, we will be dissuaded from asking whether technology offers a true solution to the problem at hand.²⁵

Even critics of new technologies can fall into the trap of techno-solutionism. By critiquing the hype spun by the technology’s developers rather than critiquing the technology’s reality and limitations, they can unintentionally validate and amplify that hype in the process.²⁶ Critics can also entrench techno-solutionism by demanding that these developers fix the technology’s problems with more of their own technology, rather than demanding regulatory or other non-technological solutions.²⁷

Take, for example, new developments in AI. There will likely be a variety of harms associated with these developments—for example, some kinds of jobs may be eliminated, and the proliferation of phishing scams, misinformation, and discrimination are all likely to increase.²⁸ However, many leading figures in the AI industry (including OpenAI founder Sam Altman) have claimed potential harms on a much greater scale, co-signing a statement that reads, “Mitigating the risk of extinction from A.I. should be a global priority alongside other societal-scale risks such as pandemics and nuclear war.”²⁹ This invocation of AI-doomerism may be self-serving, however, if it is intended to distract lawmakers and regulators from AI’s near-term harms and to encourage them to put their faith in private sector technological solutions for heading off more cataclysmic potential harms.³⁰ It is critical, as the debate about regulating AI (and other technologies) progresses, that critics engage with technology’s present realities and not just its hype—even if that hype is apocalyptic in nature.³¹

B. Techno-Solutionism and Venture Capital

Techno-solutionism does not just flatten complex problems; it often flattens the concept of technology itself. If we believe that the only solution we need lies in the components of a machine or lines of software code, we miss the “relationship[] between them and people.”³² When conceptions of technology are stripped of the human agency involved in developing and using the technology, that gives technology an undeserved veneer of neutrality. It also leads to naïve assumptions that the same technology will have the same results regardless of the time and place in which it is deployed.³³ Such purported neutrality and universality are common talking points: we regularly hear statements like, “Technology is technology. It isn’t criminal. It has no motive. It’s not looking to make more money. It just balances accounts,”³⁴ and “technology is universalist. Technology doesn’t care about your ethnicity, race, religion, national origin, gender, sexuality, political views, height, weight, hair or lack thereof.”³⁵ But the reality is that technology is never neutral; it cannot exist or function separate and apart from the human beings who create and deploy it.³⁶

Because the development of technology is not a neutral process, it is important to consider the incentives of those who develop and sell it. When technologies are developed by for-profit businesses, those businesses have strong incentives to develop those technologies in the way that will most benefit them financially (even if doing so could inflict harm on society).³⁷ Financial incentives will also impact how startup founders and their tech employees describe their technologies to others, including the venture capital (“VC”) firms they approach for funding.³⁸ VCs display significant herd behavior in choosing which “hot” technologies to fund,³⁹ with the result that founders trying to attract capital are likely to start by asking “how can we use [currently favored technology] to solve X?,” rather than “how can we best solve X?”⁴⁰

Compensation for the VCs themselves will depend on the dollar amounts invested in their funds, and on the profits their funds generate by deploying those dollars to fund and then sell startups.⁴¹ In order to maximize their own compensation, VCs must therefore find (and develop a reputation for finding) startups that will grow exponentially in the five or six years before they must be sold in order to return profits to the fund’s investors.⁴² Venture capital is not a passive investment strategy: as Wansley and Weinstein put it, “[t]he most successful VCs . . . do not just try to find home runs—they try to build home runs.”⁴³ VCs’ compensation therefore tends to depend on their ability to engineer exponential growth for their ventures—through managerial advice, certainly,⁴⁴ but also by manufacturing hype for industries,⁴⁵ lobbying,⁴⁶ and engaging in predatory pricing.⁴⁷

In short, the technological solutions that receive VC funding will not necessarily be the best solutions. Often, society would benefit from more nuanced solutions that would involve non-technological elements and take a lot longer to develop than VCs and their investors would tolerate.⁴⁸ Furthermore, the VC industry is notoriously white and male, and notoriously funds founders with whom VCs have social connections⁴⁹: this limits the perspectives brought to bear on how technology should solve problems, often excluding the possibility of public sector solutions as well as the voices of those who actually experience the problem in question.⁵⁰ Notwithstanding persistent claims that technological innovation exists to “make the world a better place,”⁵¹ Silicon Valley historian Margaret O’Mara has observed that “[t]he Valley’s engineering-dominated culture rewarded singular, near-maniacal focus on building great products and growing markets, and as a consequence often paid little attention to the rest of the world.”⁵² And yet, a techno-solutionist perspective tends to assume that the solutions emerging from Silicon Valley, even if uninformed by domain expertise, are the superior ones.⁵³

This disregard for history and outside perspectives can lead to a disregard for non-technological dimensions of problems, as well as a disregard for technology’s harms. In the absence of any legal requirements to minimize those harms, there is no reason to think that they will be addressed by technologists or their VC funders.⁵⁴ And yet a techno-solutionist perspective tends to assume that subsequent technological interventions will inevitably fix any problems technology creates, without the need for any government interference.⁵⁵ Indeed, techno-solutionism is often weaponized to discourage government oversight, as the next Section will explore.

C. Techno-Solutionism and the Law

Technological advances may challenge laws but they do not in and of themselves drive changes in the law—people do.⁵⁶ The ways in which people like legislators, regulators, and judges respond to technological advances change how law is applied and developed, and the phenomenon of techno-solutionism can drive law if it impacts these individuals and their responses. Laws and legal institutions that are influenced by techno-solutionism can also nurture and entrench techno-solutionism in a vicious cycle. While a comprehensive discussion of the relationship between techno-solutionism and the law is beyond the scope of this Article, this Section will provide an overview of some of the ways in which the law helps perpetuate the very techno-solutionism that can ultimately co-opt and stymie the law’s harm protection functions.

How Law Perpetuates Techno-Solutionism

The starting point here is to recognize that no technology business is built in a vacuum. Any business is built in an environment constructed by laws, and the laws themselves have been impacted by currents of economic and political power.⁵⁷ Laws and legal institutions engage with technology-based business models from the beginning,⁵⁸ and those laws and legal institutions have been “enlisted to help produce the profound economic and sociotechnical transformations that we see all around us.”⁵⁹ If citizens concerned about public harms cede the legal sphere to businesses with vested interests in structures that insulate them from the consequences of perpetrating harms, then the ability of the law to protect the public from harm will be further eroded.⁶⁰ This is a pervasive political economy problem, but it will be exacerbated by techno-solutionism if public-minded citizens cede their ground because those who stand to profit also have intimidating technological bona fides.

The influence of techno-solutionism can shape laws in ways that can maximize industry profitability at the expense of the public interest. We often hear that technologies can “solve all of our most pressing problems—if only the law, which cannot move at the speed of human thought, will stop undermining technology’s potential and either get with the program or get out of the way.”⁶¹ As Jodi Short and her colleagues have observed, “no industry has been more zealous in crafting and championing a regulatory ideology than the tech sector,”⁶² but this regulatory ideology is not a purely private sector creation. Lawmakers and the law have helped perpetuate it.

Many lawmakers helped perpetuate this kind of regulatory ideology in the early years of the internet; for example, Anupam Chander describes Congress, courts, and the Presidential Administration all eagerly checking one another “when they proved less than friendly to Internet innovation.”⁶³ In many ways, this trend continues today, with lawmakers often responding to technological innovations (if they respond at all) with “half-measures” that are designed to allow the underlying technology to flourish without fully addressing the attendant harms.⁶⁴ Support for such half-measures stems in part from understandings of technological innovation as so exceptional that the law should not interfere in the same way it would in other spheres—but technological exceptionalism is ultimately in the eye of the beholder. As Meg Jones puts it, “[n]ew technologies’ distinctions from legacy technologies are as political as they are technical. Novelty is constructed and as construction is performed, the method and politics of this interpretation should not be overlooked.”⁶⁵ When lawmakers craft bespoke legal and regulatory regimes for technological solutions, they are communicating their view that those technological solutions are indeed exceptional—superior to other types of solutions that receive no such special legal treatment.

An important point to note here is that law can have a messaging or expressive valence: it “creates a public set of meanings and shared understandings between the state and the public. It clarifies, and draws attention to, the behavior it prohibits. Law’s expressed meaning serves mutually reinforcing purposes. Law educates the public about what is socially harmful.”⁶⁶ While the expressive function of the law is most often discussed in terms of what it prohibits, permissive laws may also change public attitudes about what should not be considered socially harmful—and change behavior accordingly.⁶⁷ The literature on expressive laws focuses on the law’s ability to standardize norms,⁶⁸ and the law can perform a particularly potent standardizing function at a time when a technologically-enabled practice is new and the public is looking for guidance as to what to think about that practice.⁶⁹ As a result, laws and rules that emphasize the benefits of a technology and related business models and deprioritize their harms can have a normative consequence in addition to their direct impact, lending legitimacy and encouraging adoption. Once public adoption has been encouraged, it will be all the harder for lawmakers to take protective steps that have the practical impact of limiting public access to, or increasing the cost of, a technology-based business model.⁷⁰

Regulators are often the lawmakers who are on the frontlines of dealing with new technologies.⁷¹ While some regulators proactively seek to address problems or harms associated with new technologies, others propose new regulatory structures or dispense waivers that effectively get law out of the way—or simply accommodate the new technologies through their inaction.⁷² In a way, these latter approaches are institutionalized versions of Jonathan Zittrain’s procrastination principle: “a propensity to ‘set it and forget it’ without attempting to predict and avert every imaginable problem,” on the assumption that technological advances will be able to fix any problems that do ultimately arise.⁷³ When regulators take these accommodative approaches, though, they reinforce the perception that law cannot keep up with technological progress (sometimes referred to as the “pacing problem”),⁷⁴ and therefore should yield to technological solutions.

Once something does go wrong and Congress and the public demand a response, regulators will find that their own delays with regard to regulating new technologies have made it harder for them to take action. For example, if technological fixes are needed (for example, to “hardwire principles and values . . . such that violating them is impossible or nearly impossible”),⁷⁵ regulators will already have forfeited their opportunity to impact the design process. If technological changes are insufficient and regulatory interventions need to take the form of stronger regulation (for example, a preapproval regime),⁷⁶ implementation also becomes far more challenging once an ecosystem of vested interests has evolved that is resistant to any change. In short, accommodative regulatory approaches can entrench the mistaken notion that regulators have no option other than to wait and see—that the tech genie cannot be put back in the bottle—which can then thwart subsequent regulatory efforts.

Laws can also put a techno-solutionist thumb on the scale in allocating responsibilities among private parties.⁷⁷ In an article titled How Law Made Silicon Valley, Chander argues that:

Silicon Valley’s success in the Internet era has been due to key substantive reforms to American copyright and tort law that dramatically reduced the risks faced by Silicon Valley’s new breed of global traders. Specifically, legal innovations in the 1990s that reduced liability concerns for Internet intermediaries, coupled with low privacy protections, created a legal ecosystem that proved fertile for the new enterprises of what came to be known as Web 2.0.⁷⁸

More recently, technology-based businesses have also proactively wielded trade secrecy laws to avoid public scrutiny.⁷⁹ The result has already been “a constellation of powerful de jure and de facto legal immunities that insulate their architects and operators from accountability for a wide and growing variety of harms.”⁸⁰ Certainly, such a faciliatory approach has helped technological innovation flourish, but context matters (notwithstanding that techno-solutionism encourages us to ignore that context). If the attendant harms of technological innovation are seemingly minor, then an accommodative or faciliatory approach may make sense; such an approach is less justifiable when the associated harms are significant. But by insulating technology’s harms from legal scrutiny, such legal structures shift public attention away from the harms, entrenching techno-solutionist perspectives that focus only on technology’s positives.

Public actions have also perpetuated techno-solutionism by helping to fund Silicon Valley. While the mythology of Silicon Valley tells of innovation born of self-made visionaries, governmental bodies have in fact created significant subsidies for the VC industry, which (together with the liability shields and intellectual property protections already discussed) have allowed Silicon Valley and its techno-solutionism to flourish.⁸¹ As Peter Lee points out, “[t]he federal government played a critical role in catalyzing the VC industry by funding technologies that attracted private investment.”⁸² State legislatures also created the type of business entity known as the limited partnership, allowing limited liability protection for investors while still preserving favorable capital gains taxation associated with traditional unlimited liability partnerships—the VC industry has embraced this type of business entity, and its industry associations have aggressively lobbied over the years to lower capital gains taxation rates.⁸³ The VC industry has also benefitted from other types of favorable tax treatment, outright subsidies, and pension fund regulation that permits such funds to invest in VC⁸⁴ (institutional investment was a particular boon to the VC industry during the prolonged period of low interest rates that ran from the Global Financial Crisis until 2022—interest rate setting can also function as a type of VC subsidy).⁸⁵

To be clear, providing incentives and subsidies for private sector innovation will often be good public policy. If public authorities remain mindful of potential harms and deploy incentives and subsidies as part of a portfolio strategy that also considers where direct public investment might be more effective, such an approach is likely to broadly benefit society. Unfortunately, the political landscape in the United States has evolved in such a way that the deck is often stacked against pursuing public sector solutions: Mazzucato attributes this in part to “the emergence of ‘new public management’ theory, which grew out of ‘public choice’ theory in the 1980s,” and “led civil servants to believe that they should take up as little space as possible, fearing that government failures may be even worse than market failures.”⁸⁶ How to encourage public innovation is an important topic, but it is beyond the scope of this Article. What is relevant to this Article is that the flip side of timidity with regard to public innovation can manifest as credulousness with respect to private sector technological solutions and undeserved acceptance of their harms. While such credulousness is often unwarranted—particularly when the problem that needs solving would never truly be attempted by the private sector because solving it will take too long and primarily generate public goods that venture capitalists cannot profit from⁸⁷—the law has helped build this credulousness with its subsidies and waivers for private sector technological innovation.

How Law Can Be Stymied by Techno-Solutionism

Law can therefore help perpetuate techno-solutionism—and then find its harm protection functions stymied by it. We regularly hear that existing law is becoming outdated, that the legislative process is too slow to keep up with the pace of technological change, and that the administrative state is becoming obsolete as regulators of specific industries (for example, banks) can no longer comprehend how those industries carry out their functions in a technologically advanced world. These are sometimes real concerns, but they are sometimes overstated and weaponized by those who would rather not have the existing rules applied to them—even when those rules continue to be fit for purpose. As Julie Cohen puts it, the relationship between technology and law is often framed as “what happens when an irresistible force meets an immovable object.”⁸⁸ If lawmakers accept this framing, they will internalize the position that innovation and legal protections are in tension⁸⁹ and might undermine legal protections so as to not be the immovable object which impedes technological development. The previous Section helped explain how the law can bolster the narrative that technology is an irresistible force; this Section will give an overview of cognitive capture, regulatory arbitrage, and regulatory entrepreneurship—three interrelated dynamics that techno-solutionists can weaponize to undermine existing applicable laws.

There is a classic techno-solutionist narrative that the industry often deploys when confronted with regulation: “[L]auding tech’s benefits, suggesting that government regulation will kill innovation, and advocating for technology-enabled self-regulation instead.”⁹⁰ This kind of narrative suggests that real and present harms should be disregarded in the face of (often unsubstantiated) excitement about potential benefits.⁹¹ Repetition of this narrative can help generate “cognitive capture” that discourages regulators from standing in the way of technological innovation.⁹² The concept of “cognitive capture” is often distinguished from the more venal forms of regulatory capture prevalent in public choice literature; in both instances, regulators come to prioritize the interests of industry over the public, but cognitive capture arises not because of bribes or other hopes of aggrandizement, but because regulators genuinely come to see the world the way industry does.⁹³ If that happens, then public and industry interest may appear synonymous to regulators.

Movements to portray government as ineffective have already helped convince many regulators that they have limited capacity to restrain harms, and that they should be afraid of impeding important progress by the private sector.⁹⁴ When it comes to technology, regulators are aware that their actions can impact how technology develops, and they may come to feel that actions which could deprive the public of a particular technological innovation are a public disservice (even if there are harms associated with that technological innovation, and even as the general public evinces growing concerns about the power of Big Tech).⁹⁵ Technology philosopher Evan Selinger has described how “[s]olutionism is a crucial component of how Big Tech sells its visions of innovation to the public and investors,”⁹⁶ but solutionism is also a crucial component of how technological innovation is “sold” to regulators.

Cognitive capture is built in part through relationships,⁹⁷ and the subsidies and regulatory waivers discussed in the previous Section have helped VC firms to prosper sufficiently to ensure their access to regulators, enabling them to reinforce the techno-solutionist tendencies that benefit them. Cognitive capture can be particularly insidious when regulators are dependent on industry for information about how a technology works, because then regulators’ understanding will have been filtered through and permeated by industry’s perspectives on its creations.⁹⁸ There is also a status aspect to cognitive capture, where “[r]egulators are more likely to adopt positions advanced by people whom they perceive to be of higher status in social, economic, intellectual, or other terms.”⁹⁹ With Silicon Valley’s successes has come an “an almost mythic reputation for meritocracy, innovation, and long-term value creation,” the “political valence” of which can sometimes be hard for regulators to resist.¹⁰⁰

Such status concerns can be particularly pernicious if they result in regulators (particularly regulators of industries that were not traditionally technologized) undervaluing their own expertise—notwithstanding that their domain knowledge typically far exceeds that of the technologists developing solutions for that domain.¹⁰¹ In an “Emperor’s New Clothes” type scenario, regulators may feel too intimidated to ask preliminary questions about whether their industry’s problems can, in fact, be solved with the technological tools at hand (or indeed, by technological tools at all). Or regulators might be discouraged from asking questions about the domain-specific harms that technology could inflict. As Jones puts it, “[s]ometimes, a technology is so innovative, we are told that it cannot be proactively regulated, for how are policymakers to understand its technical complexities or know its potential.”¹⁰² If regulators buy into this techno-solutionism, they are likely to adopt a posture of accommodative inaction: viewing even technological solutions that are at best band-aids as plausible solutions that they don’t want to stifle—even if those solutions pose significant social harms.

This environment of techno-solutionist cognitive capture is a highly fertile one in which to deploy strategies of regulatory arbitrage and entrepreneurship. “Regulatory arbitrage” describes industry strategies for exploiting gaps and differences in legal treatment—perhaps by performing activities that are prohibited in one jurisdiction in a more friendly jurisdiction, or by achieving the same outcome as a regulated activity but doing so in a way that was not clearly contemplated by existing regulatory regimes.¹⁰³ Techno-solutionist narratives can facilitate arbitrage in the latter context, by suggesting that the technology is so novel and so free that it simply cannot be regulated in the same way as existing modes of performing the relevant activities.¹⁰⁴ If regulators wish to respond to such regulatory arbitrage with new regulations, technological exceptionalism may tempt them to create rules that are very specifically tied to the technology in question—but when regulation is made too specific to a particular technology, it can be very easy for industry to evade that regulation by making small technological tweaks.

Businesses built on regulatory arbitrage may seek to “harden” that arbitrage into a durable legal permission through strategies of regulatory entrepreneurship. As used by legal scholars Elizabeth Pollman and Jordan Barry, the term “regulatory entrepreneurship” is most notably associated with the ride-hailing platform Uber, and refers to a growth strategy utilized particularly by VC-funded enterprises that involves “pursuing a line of business in which changing the law is a significant part of the business plan” even when it can “lead to negative consequences when companies’ interests diverge from the public interest.”¹⁰⁵ Pollman and Barry have identified

three creative techniques that modern regulatory entrepreneurs have adopted in various combinations: They break the law and take advantage of legal gray areas, real or imagined, asking forgiveness instead of permission. They seek to grow ‘too big to ban’ before regulators can act, sometimes referred to as ‘guerilla growth.’ Perhaps most dramatic, they mobilize their users and stakeholders as a political force.¹⁰⁶

In other words, regulatory entrepreneurs engage in regulatory arbitrage or outright non-compliance until their businesses have become so large and established that they can paint legal changes permanently authorizing their activities as an inevitable necessity—notwithstanding that the business’s public harms will go unchecked as a result.

While the strategy of regulatory entrepreneurship is not exclusive to technology-based businesses,¹⁰⁷ it is most commonly associated with VC-funded startups.¹⁰⁸ Part of the explanation for this lies in the asymmetric incentive structures of VC funders, who face little legal liability for encouraging their portfolio companies to break the law but stand to capture a significant part of any upside from regulatory entrepreneurship strategies.¹⁰⁹ But it is also true that regulatory entrepreneurship is enabled by techno-solutionist narratives that make it particularly difficult for lawmakers and regulators to proactively rein in tech-related legal breaches. Regulatory entrepreneurship capitalizes on the pacing problem, seeking to grow “too big to ban” before the law catches up. But it is not inevitable that the law will fall hopelessly behind technological development. Ultimately, refusing to apply the law to a technology until after it is fully developed and entrenched—and then crafting accommodative laws that treat the extant incarnation of technology-based business models as inevitable—is a choice. That choice, which can stymie the harm-reduction functions of law, is often encouraged by cognitive capture, donations, and lobbying, all of which are part of the regulatory entrepreneurship playbook.¹¹⁰

II. Fintech and Techno-Solutionism

The previous Part spoke about techno-solutionism generally; the rest of this Article will focus more specifically on techno-solutionism as it relates to fintech. Because “finance is at the heart of the economy; is social and political; and is composed of non-stationary relationships that exhibit secular change,”¹¹¹ it should be obvious (but sadly often is not) that solutions that neglect the social and political dimensions of financial problems will be inadequate. When technology is presented as the whole solution to a financial problem, then the best-case scenario will be that it fails to live up to its promises. Worst-case scenarios will arise if the shiny promises of the technology distract us from interrogating the downsides of business models that use that technology or distract us from addressing the root causes of the problem that is purportedly being solved.

In order to critique fintech’s techno-solutionism, we need a framework for thinking about what might need “solving” in finance in the first place. In many ways, the list of potential improvements to financial services and the financial system is infinite, but it is conceptually helpful to start by identifying what finance is supposed to do—at a high level—in order to consider how it could do it better. In the book Principles of Financial Regulation, John Armour and his colleagues identify the following as the key socially beneficial functions of the financial system: facilitating payments; mobilizing capital; selecting projects and monitoring their performance; and managing risk.¹¹² These can be collapsed further into three broad categories of functions: transaction processing, capital intermediation, and risk management.¹¹³ If the financial system is not performing these functions inclusively, efficiently, competitively, or securely, there may be a problem that needs to be fixed.

Of course, going back to first principles, we sometimes rely on the private sector financial industry to perform functions that it is ill-equipped to perform; public sector alternatives will often be needed to ensure reasonably-priced and widely-available transaction processing, capital intermediation, and risk management services.¹¹⁴ Still, these three goals reflect general understandings of what the private sector financial system is supposed to achieve, and fintech technologies and business models are typically marketed as improving the delivery of these goals. Transaction processing (particularly payments processing) lends itself most obviously to technological improvement, but fintech entrepreneurs have also sought to improve capital intermediation (for example, with fintech lending and algorithmic trading business models) and risk management (for example, with AI-driven robo-advisory services).¹¹⁵

These disparate services all count as fintech. “Fintech” is not really a unified term, and it can be used to describe an assortment of different kinds of firms, technologies, and business models.¹¹⁶ This Article will focus less on fintech as firms and more on the underlying fintech technologies and business models that rely on them. Morozov focused his critique of techno-solutionism on “the Internet,”¹¹⁷ but when it comes to fintech, techno-solutionism also extends to other digital technologies like cloud computing, AI, blockchain, and APIs.¹¹⁸ These technologies are diverse in many ways, but because they are accessed through the Internet, they can all reach significant scale.¹¹⁹ They also tend to rely on Big Data and often share the capacity for automation.¹²⁰

Notably, fintech technologies and business models are not the exclusive province of new fintech firms, but have found their way into traditional financial institutions as well.¹²¹ There are many different drivers of the adoption of these technologies and business models, but it is likely that some of the adoption is being driven by supply-side incentives to profit from the “next new thing,”¹²² and it is also possible that some adoption is being driven by FOMO (“fear of missing out” on new tech trends).¹²³ The more commonly articulated narratives around fintech adoption, though, are desires to improve financial inclusion, efficiency, competition, and security.¹²⁴ This Part will evaluate these narratives with a skeptical eye and conclude that while fintech may sometimes form part of the solutions we need, technology cannot provide the entire solution.

A. Financial Inclusion

As noted above, the financial system provides critical payments and other transaction processing services. Everyday people benefit from these services, and they also benefit from the mobilization of capital: both as savers and investors who profit from returns, and as recipients of credit. Building wealth and diversifying investments can also help people manage the financial risks they may face in their lives. People who are excluded from traditional financial services can be charged significant premiums for transacting, locked out of full participation in the economy, and denied opportunities to manage their financial risks and build wealth.¹²⁵ Improving access (which is often referred to as “financial inclusion”) is therefore viewed as a critically important social goal.¹²⁶ However, improving financial inclusion requires an understanding of the reasons why people are currently excluded, and the consequences of that exclusion. These are textured and context-specific, and once we start looking at the relevant context, it soon becomes clear that technology alone cannot solve financial inclusion problems. Unfortunately, though, fintech’s hype can undermine support for the kinds of public-driven solutions (including “hard service mandates, public provision, or taxpayer subsidies”) that could actually improve financial inclusion.¹²⁷

Whether adults have a bank account or not is often used as a proxy for gauging the level of financial inclusion in a particular country. Research by the World Bank indicates that account ownership often varies by age, by level of education, and by gender (among other things), suggesting that there are structural explanations for financial exclusion.¹²⁸ These structural explanations will vary significantly from place to place,¹²⁹ and so visions of universally applicable solutions to global financial inclusion will inevitably prove overly simplistic. This Article will focus more narrowly on fintech’s aspirations to improve financial inclusion within the United States (although we should not ignore the rest of the world: Silicon Valley-funded firms often try out their new tech solutions on populations in developing countries who lack the regulatory protections available in the United States).¹³⁰

There is a striking racial dimension to financial inclusion problems in America.¹³¹ A 2021 survey found that while 4.5% of U.S. households overall were “unbanked” (in the sense that “no one in the household had a checking or savings account at a bank or credit union”),¹³² “[d]ifferences in unbanked rates between Black and White households and between Hispanic and White households in 2021 were present at every income level.”¹³³ As Adam Levitin puts it, “[n]early one in nine Black households and one in eleven Hispanic households lacks a bank account, and nearly one in four Black and Hispanic households are underbanked” (meaning they have bank accounts but still rely on alternative providers like check cashers or payday lenders).¹³⁴ Many who are unbanked or underbanked identify the primary reason as either insufficient wealth to meet minimum balance requirements or lack of trust in banks.¹³⁵

Fintech services are regularly depicted as a solution to both this lack of trust and underserved populations’ need for reasonably priced financial services: claims to “democratize finance” and “[b]ank the [u]nbanked” abound.¹³⁶ Ultimately, though, technology is not a response to the lack of wealth and trust that creates racial disparities in financial inclusion in the United States. Black Americans in particular tend to distrust traditional financial institutions, often with good historical reason.¹³⁷ Instead of doing the hard work of repairing that relationship, a techno-solutionist approach to financial inclusion allows new entrants to exploit that lack of distrust, often with even more exploitative results.¹³⁸

While traditional financial institutions have a very mixed track record with regard to underserved populations,¹³⁹ they are at least subject to regulations designed to protect consumers and investors. Fintech business models, however, are often designed to skirt these regulations, often leaving their users (once again) with second-best, more exploitative financial services. Fintech proponents may hope that it will help “close the racial wealth gap,” but the reality is often a markedly less rosy form of predatory inclusion (similar to prior innovations like payday loans and subprime mortgages).¹⁴⁰

Christopher K. Odinet, for example, argues that while some fintech credit providers claim that their online interfaces and machine learning-based credit scoring procedures differentiate them from predatory payday lending models, they often charge rates of interest that are similar to those charged by payday lenders.¹⁴¹ In a similar vein, Nakita Cuttino has examined the earned-wage access fintech business model,¹⁴² which has been described by one proponent as a “revolutionary employee benefit program that offers employees almost instant access to their pay.”¹⁴³ She finds that while this business model does offer some improvements over the prevailing payday lending model, it still has “varying effects that sometimes perpetuate, and in some instances exacerbate, the very risks providers claim to eliminate when displacing short-term creditors like payday lenders.”¹⁴⁴

Notwithstanding their deficiencies, there is consumer demand for these kinds of products, and so the problems associated with fintech lending and earned wage access products should be addressed by robust consumer protection regulation. Fintech lending models have, however, been constructed to avoid certain consumer protections like usury limits and state licensing requirements by engaging in “rent-a-bank” partnerships with banks;¹⁴⁵ earned-wage access programs also currently escape most meaningful consumer protection regulation.¹⁴⁶ Odinet notes that the mystique of technology has been strategically weaponized to avoid regulation, observing that “the politics of tech . . . is giving political cover to predatory fintech lenders and clouding what should otherwise be a clear headed and aggressive approach by financial regulators in stamping out these harmful practices.”¹⁴⁷

These fintech lending business models have been billed as “unlock[ing] more credit opportunities” for those who otherwise have bad credit scores or thin credit files,¹⁴⁸ but unfortunately, the kinds of machine learning models used to process non-traditional data sources have often been shown to perpetuate discrimination and bias. Machine learning algorithms are guided by patterns and correlations evident in the data they have been exposed to,¹⁴⁹ and so credit scoring algorithms that learn from biased data will perpetuate those biases in their credit-scoring decisions.¹⁵⁰ This biased algorithmic decision-making can be particularly insidious, though, because it is often hidden: “[m]arkers for protected class membership can be inferred with relative ease and near-impunity from other, seemingly neutral data.”¹⁵¹ Once again, it is very techno-solutionist to assume that technology alone could winnow out centuries of entrenched biases, but automation biases and narratives of technological neutrality can lend undeserved credibility to such assumptions, impacting access to credit.

The bigger picture problem, of course, is the demand for credit: many Americans are so strapped for cash that they cannot survive from month-to-month without interim payments or loans.¹⁵² The predatory fintech loans and earned wage access products discussed here can obfuscate and draw attention away from the need to address this deeper, underlying structural problem.¹⁵³ In their work on fintech, Lindsay Sain Jones and Goldburn Maynard explore one part of this underlying problem—the racial wealth gap. They consider a variety of fintech business models (including “e-trading, robo-advising, alternative credit platforms, neobanks, and decentralized payments”)¹⁵⁴ and demonstrate that many of fintech’s claims about building wealth for traditionally excluded groups do not bear out, and in fact often disguise predatory practices that disproportionately harm vulnerable members of society.¹⁵⁵

Consumers may struggle to detect predatory practices because of fintech’s technological complexity: financial literacy is already extremely challenging for most people,¹⁵⁶ and fintech often overlays a requirement to be technologically literate too, which puts an even more unrealistic burden on users.¹⁵⁷ Baradaran has noted that the rhetoric of financial literacy “pathologize[s] the poor—and assume[s] that their poverty was created by individual choices—or treat[s] their state of poverty or financial exclusion as a trait inherent in the excluded borrower.”¹⁵⁸ As Darrick Hamilton has observed, if the poor internalize this critique, it fuels their desire not to look foolish for missing out on financial opportunities presented to them, which can make them more vulnerable to predatory practices.¹⁵⁹ If debunking a too-good-to-be-true financial opportunity requires not just financial knowledge, but also understanding how a new technology works, it is not surprising that vulnerable people are sucked in.

This dynamic is particularly evident in the context of the crypto industry. Often described by its critics as “a solution in search of a problem,”¹⁶⁰ crypto represents in many ways the apotheosis of fintech and techno-solutionism. Promises have been made that crypto’s underlying blockchain technology can democratize financial services by making them cheaper, more efficient, and more secure—but none of these promises withstand scrutiny. Ultimately, a blockchain is simply a type of database to which entries can only be added, not removed, and which is controlled by multiple nodes instead of relying on centralized intermediaries.¹⁶¹ While this technology might be interesting from an academic perspective, according to more than 1,500 independent computer scientists, software engineers, and other technologists who signed a letter to U.S. Congressional leaders in 2022, “[b]y its very design, blockchain technology is poorly suited for just about every purpose currently touted as a present or potential source of public benefit.”¹⁶²

It is not the blockchain itself that is offered as an investment opportunity, but the crypto tokens (like Bitcoin) whose ownership is recorded on blockchains. The crypto industry regularly invokes claims of financial inclusion, focusing in particular on reported high uptake of crypto tokens in Black communities in the United States.¹⁶³ But most of these crypto tokens are not backed by any real-world productive capacity, and are Ponzi-like in their need for significant amounts of new demand and liquidity to support their value.¹⁶⁴ Data analysis by economists at the Bank for International Settlements in 2023 concluded that “a majority of investors have probably lost money on their bitcoin investment,” and that large holders (commonly referred to as “whales”) likely profited at their expense.¹⁶⁵ Some data does indicate that members of Black communities are disproportionately likely to own crypto,¹⁶⁶ but this will be predatory inclusion if “whales” are using Black communities to provide the liquidity they need to cash out. There is some indication that this is, in fact, the case. Results from a Pew survey conducted in 2023 suggested that Black, Hispanic, and lower-income investors were disproportionately likely to have entered the crypto markets in March 2022 or later, after the market peak at the end of 2021.¹⁶⁷

When assets have no fundamentals and trade entirely on sentiment, traditional checks on fraud (like independent valuations and audits) break down, leaving crypto investors particularly vulnerable to fraudsters.¹⁶⁸ Crypto is also highly attractive to scammers and hackers because transactions on a blockchain cannot be undone (at least, not without taking drastic steps).¹⁶⁹ Unsurprisingly, the crypto markets are rife with fraud, hackings, and scams—and crypto users are expected to be able to protect themselves from these.¹⁷⁰ As discussed previously, however, self-protection in these circumstances requires unrealistically high levels of both technological and financial literacy.¹⁷¹ Even in the absence of frauds, scams, and hackings, blockchain technology struggles to scale,¹⁷² with the result that transactions processed on a blockchain can be subject to unexpected delays and high fluctuating fees at peak times (in addition to the fees users incur converting their crypto into and out of fiat currency on crypto exchanges).¹⁷³ It is also important to note that these crypto exchanges typically require users to have a bank account in order to open an exchange account, meaning that unbanked customer will not be able to use an exchange to acquire crypto or to cash out of it in order to transact in the real economy.¹⁷⁴

This practical need for a bank account to access crypto also undermines industry claims that a type of crypto asset known as a “stablecoin” will bank the unbanked.¹⁷⁵ Unlike most other crypto assets, stablecoins typically have some reserve of assets backing them and are therefore not as volatile as other kinds of crypto assets. Still, stablecoins remain vulnerable to runs where first movers are made whole while the remaining holders suffer losses.¹⁷⁶ Indeed, some stablecoins have collapsed in recent years, causing their users to lose everything.¹⁷⁷ As for those that have not collapsed, the World Economic Forum has concluded that stablecoins do not provide any novel payments functionality, noting that “stablecoins as currently deployed would not provide compelling new benefits for financial inclusion beyond those offered by pre-existing options.”¹⁷⁸ Ultimately, stablecoins have little to recommend them as a financial inclusion solution.

Despite these realities, techno-solutionist narratives about crypto’s ability to improve financial inclusion are stubbornly resilient. Brookings’s Tonantzin Carmona has broken down crypto’s financial inclusion narrative into two halves: (1) easy access to transactional services for those previously locked out of the financial system, and (2) a wealth building avenue with low barriers to entry.¹⁷⁹ She thoroughly debunks both halves, demonstrating that cryptocurrencies are poorly suited to perform transactional services, and that the volatility of most crypto assets’ value makes them unsuited to wealth building.¹⁸⁰ As already mentioned, most crypto exchanges require users to have a bank account to acquire any crypto asset in the first place, so crypto solves little for the unbanked.¹⁸¹ Crypto loans typically require overcollateralization before they are extended, so those without wealth (in the form of collateral) will not be able to receive loans.¹⁸² Rejecting techno-solutionism, Carmona admonishes policymakers to “first clarify the problems they are trying to solve, and more importantly, why they are trying to solve them.”¹⁸³

Unbanked and underbanked individuals in the U.S. would benefit enormously from access to simple, quick, low-cost transactional services.¹⁸⁴ We already have the technology needed to provide these, though, and it seems to be more a lack of political will that prevents such transactional services from being provided more widely.¹⁸⁵ Reliance on predatorily priced credit is a thornier problem¹⁸⁶—here, solving the problem of financial inclusion will ultimately require that people have some wealth to begin with, and building that wealth is a complex political and social problem that will require public sector involvement.¹⁸⁷ Mehrsa Baradaran, for example, has argued for compensatory policies designed to build home-ownership in geographical areas that have typically been marginalized.¹⁸⁸ Sain Jones and Maynard have called for infrastructure improvements, tax policy changes, and government wealth transfers—in addition to improvements to financial services and technology oversight.¹⁸⁹ Darrick Hamilton and William Darity, Jr., have proposed “baby bonds,” which would allow children in need to build wealth by the time they become adults.¹⁹⁰ While technology might play a minor role in creating the infrastructure for delivering this kind of wealth-building, it will not come close to providing the whole solution. The undeservedly shiny promise of fintech can be weaponized, though, to argue that such meaningful structural solutions are unnecessary.

B. Efficiency

Another big claim of fintech is that it can make financial services more efficient.¹⁹¹ It is particularly common to hear that fintech is more efficient because it eliminates the need for human customer service or brick-and-mortar bank branches.¹⁹² In many ways, though, this rhetoric is overblown: most fintech payment services and lenders, for example, ultimately depend on traditional bank infrastructure and therefore do not fully eliminate their costs. Still, that promise of increased efficiency remains the front of many financial inclusion claims: the hope is that transaction processing services that are quicker and cheaper can serve more people (including traditionally excluded populations) more effectively.¹⁹³ We have already discussed how these financial inclusion claims are often hollow; many fintech services have, in fact, become profitable by appealing to higher income customers. Still, promises of increased efficiency are also key to how fintech is marketed to these higher income consumers.¹⁹⁴ But solving for “efficiency” in the abstract is an impossible task. It is critical that we define the precise problem to be solved, instead of simply assuming that some version of increased efficiency will get us where we need to go.

Techno-solutionism is tied to commonly accepted notions that “more efficient” is always an improvement: efficiency has been our mantra for so long, in so many business contexts, that it has come to be perceived as an obvious and neutral goal. But there are many different ways of conceptualizing efficiency that are relevant to fintech policy¹⁹⁵: There is the colloquial sense of efficiency as avoiding wastefulness.¹⁹⁶ We must also contend with economic definitions of allocative efficiency (which often hide distributional inequities),¹⁹⁷ and informational efficiency (which relates to how well prices of financial assets reflect available information).¹⁹⁸ Or we might take a computer science approach and try to “minimize the consumption of time, energy, space, or cost in satisfying a specification of correctness for a given problem”—although Ohm and Frankle note that there are still many axes of efficiency to be traded off even within this technology-centric definition.¹⁹⁹ There has also been increased recognition within the computer science discipline that computational efficiency is not always the right parameter to maximize, with computer scientists and engineers sometimes “turn[ing] away from efficient solutions when faced with the need to inject complex human values into systems.”²⁰⁰ As the previous Section explored, one of the most challenging human values to inject into financial services is distributional equity.

And so there is no single universal definition of efficiency, but it is true that payments often take too long to clear in the United States, which is a real and persistent problem for the underbanked.²⁰¹ For more affluent people, such delays are merely an annoyance; for those who live paycheck to paycheck, waiting three days for a payment to clear can result in costly defaults or the need for expensive services like check cashing and payday lending.²⁰² The earned-wage access fintech products discussed in the previous Section aim to make delivery of funds more rapid, but they too can prove costly.²⁰³

While slow payments processing may seem at first blush like a technology problem, technologies for faster payments processing by banks already exist, and have been widely used (particularly outside of the United States) for some time.²⁰⁴ The fact that these kinds of technologies are not widely used in the United States is in large part a political problem, requiring political solutions. Banks, for example, could be required to use readily available technologies to clear and settle payments more speedily by amending the Expedited Funds Availability Act.²⁰⁵ The Federal Reserve launched its real-time payments service, FedNow, on July 20, 2023, but uptake by banks has been slow.²⁰⁶ Congress could consider mandating that banks join FedNow to ensure that these faster payment rails are available to their customers.

To be clear, these political problems can be very intractable. If fintech providers could provide an end run around these political problems by providing quick and affordable payments processing, then that would be very appealing. Unfortunately, though, fintech payments providers sometimes overclaim regarding the increased efficiencies of their technologies. For example, despite repeated crypto industry assertions of improved efficiency,²⁰⁷ the underlying blockchain technology is inefficient by design.²⁰⁸ Processing transactions on any decentralized permissionless ledger will always be slower and more cumbersome than available centralized alternatives, because in the absence of costly computations, it would be too easy for a bad actor to take over a technologically decentralized system.²⁰⁹ As a result, transaction processing on blockchains is slow and expensive (and the cost and timing of such processing is often unpredictable), and blockchains struggle to scale to process large volumes of transactions.²¹⁰

Since inefficiency is a feature and not a bug of technologically decentralized systems, if blockchain-based businesses are able to increase efficiencies, they are likely to derive from regulatory arbitrage strategies that reduce regulatory compliance costs. Most parties involved in financial transactions are required to engage in “know-your-client” due diligence and other compliance checks to help prevent the financial system from being used for money laundering and sanctions evasion.²¹¹ These checks necessarily add time and expense to transaction processing—time and expense that unregulated members of the crypto industry can avoid by engaging in regulatory arbitrage²¹² (the crypto industry has pushed back on legislative attempts to extend anti-money laundering obligations to entities involved in processing crypto transactions, citing the decentralized nature of the crypto ecosystem and the costs of impeding innovation).²¹³

There are, of course, many technological alternatives to blockchains. Some fintech alternatives may indeed have the potential to improve the speed or cost of payments processing and other financial services. But focusing on these kinds of efficiency to the exclusion of all else can cause problems, too. Faster payments, for example, often enable faster fraud,²¹⁴ and are therefore opening up new consumer protection problems that need to be addressed. As we will discuss shortly, increased efficiencies can also increase the susceptibility of the financial system to financial crises, with all the human misery those crises entail.²¹⁵ Concerns about efficiency-induced fragility have been percolating since highly efficient but brittle supply chains stalled and crumbled during the Covid-19 pandemic. People are now asking whether we have gone too far in maximizing supply chain efficiency, at the expense of overall resilience and robustness.²¹⁶ We should ask the same question of technological innovations that are promising to make finance more efficient: What are they doing to the resilience of our financial system? To put the question a little differently, are increases in efficiency delivering diminishing marginal returns that are not commensurate with the increased fragilities they create?²¹⁷

For example, fintech business models designed to make capital intermediation and risk management more efficient (ranging from robo-advisors to high frequency trading) may end up making our financial system more fragile—as well as undermining other kinds of efficiency, like informational efficiency.²¹⁸ Take the high frequency trading business model. It is facilitated entirely by algorithms designed to trade at speeds and in volumes that humans would not be capable of.²¹⁹ Proponents of high frequency trading argue that it improves the efficiency of capital intermediation because it increases the volume of trading and by providing more opportunities to transact, increases liquidity and lowers trading costs.²²⁰ But that is only true in normal times. When things are obviously wrong in the market (at least, obvious to a human), the algorithm may continue to trade in a way that generates “flash crashes” of asset prices, which could spark fire sale externalities that threaten the stability of the financial system.²²¹ If the algorithm does recognize that something is really wrong, more often than not its preprogrammed instruction is to simply stop trading, draining liquidity from the system when it is most needed.²²²

“Tokenization” of real-world assets is another efficiency-driven form of fintech that could make the financial system more vulnerable during unanticipated circumstances.²²³ These tokens are digital representations of real-world assets that can be preprogrammed such that financial transactions will self-execute without human intervention.²²⁴ Automating transactions can certainly increase speed and reduce costs²²⁵ (tokenization is typically associated with blockchain technologies, but programmable tokens can also be hosted on other kinds of ledgers and so avoid blockchain’s inefficiencies).²²⁶ However, the speed of self-execution can cause problems when the world has changed in ways that were not contemplated by the token’s programmers.²²⁷ During periods of systemic stress (when flexibility is critical to avoiding a crisis),²²⁸ automated transactions will still execute rapidly—even if the parties would otherwise have agreed to negotiate or extend some grace to their counterparties to prevent temporary liquidity problems from metastasizing into something worse.

If we want our financial system to be more robust and resilient overall, we will sometimes need to focus on preserving or adding back inefficiencies, to allow the system to reconfigure when the unexpected happens in order to prevent failure.²²⁹ This may require certain aspects of the financial system to have frictions (like circuit breakers), or to be slower, or to have more redundancies. Obviously, a system that is entirely inefficient would be of no use at all, so the key is to achieve the right balance of efficiency against other system attributes.²³⁰ We are more likely to achieve the right balance if we reject techno-solutionist exhortations for efficiency qua efficiency. Then we can start interrogating on a case-by-case basis where a type of efficiency will deliver only diminishing marginal returns and is not worth the attendant fragilities, as well as where financial regulation might help compensate for those fragilities.

C. Competition

Where there is a perceived lack of efficiency in the provision of financial services, innovation-driven competition is often seen as the answer.²³¹ Fintech proponents often trumpet the disruption and competition fintech creates for the financial industry’s more highly-regulated institutions when it comes to providing capital intermediation (particularly credit), risk management, and transaction processing services.²³² However, as with efficiency, if the competition benefits associated with fintech are a product of regulatory arbitrage rather than technological superiority, then they may not be worthwhile or desirable from a public policy perspective.

It is true that disrupting incumbents can be challenging in highly regulated industries, like finance, because regulatory compliance can serve as a barrier to entry—arguments have been made for repealing or waiving financial regulations as a result.²³³ This Article will take up the topic of deregulation in Part III: here, it suffices to say that we’ve already seen that businesses like fintech lenders and crypto intermediaries often find their competitive advantage not by fundamentally changing how financial services are delivered, but by using the veneer of techno-solutionism to justify their regulatory arbitrage.²³⁴ This kind of regulatory arbitrage may in some circumstances result in reduced costs for consumers (although predatory pricing exists in some fintech markets, so this is by no means guaranteed).²³⁵ However, where the law being skirted serves an important social purpose—particularly if it exists to protect the public from harm—then this kind of competition may be socially undesirable even if it lowers prices. In a recent article, Saule Omarova and Graham Steele argued that prudential banking regulation, which seeks to ensure that banks are managed in a safe and sound manner, does not in fact inhibit competition but actually restrains incumbents from abusing their existing market power.²³⁶ They argue that without this regulation, new firms would have to contend with even more firmly entrenched incumbent banks.²³⁷ They also argue that firms who skirt this regulation can develop market power in an antisocial way where gains are privatized and losses socialized.²³⁸

Ultimately, whether rent-a-bank partnerships and other business models that use new technologies to arbitrage existing laws are seen as a “solution” to imperfectly competitive markets will depend on how the problem of “competition” is construed. For nearly fifty years, competition law in the United States has focused very narrowly on addressing inefficiencies arising from market power that impact the prices paid by consumers.²³⁹ If, however, we embrace a more expansive and nuanced notion of the public harms that can result from excessive economic concentration, and appreciate that “[m]arket power also harms society as a whole by lessening economic growth and productivity and by contributing to our Gilded Age levels of inequality,”²⁴⁰ then it will become clear that technology cannot resolve these kinds of concerns on its own.

Technology may, in fact, be the source of some of these concerns about market power (or at least, their accelerant). For example, the power of dominant technology platforms to use algorithms to manipulate their users and their competitive environment has been a dominant concern of Lina Khan and other “neo-Brandeisian” antitrust scholars.²⁴¹

These scholars have proposed antitrust law reforms to the economic concentration and market power of the giant tech platforms,²⁴² but the tech industry prefers its own tech solution in the form of Web3.²⁴³ “Web3” is not so much a reality as it is a marketing term for a more utopian vision of an internet where the use of blockchain technology helps wrest control and ownership away from the existing tech platforms. (By way of background, Web1 describes the read-only internet of the 1990s; Web2 is our current era in which we can read and also create content, but it is all intermediated through large platforms; and Web3 is supposed to let us “read, write, and own” the Internet.)²⁴⁴ Although this may sound superficially appealing, there are many reasons to be cynical about this techno-solutionist vision (which many consider to be no more than a cynical crypto rebrand).²⁴⁵

First of all, we can look at who is investing in Web3. Andreessen Horowitz, the preeminent VC firm investing in Web3 companies, also has important relationships with Web2 platform companies (like Meta) that Web3 purports to disrupt.²⁴⁶ Meta (née Facebook) itself invested heavily in a Web3-aligned Metaverse that incorporated blockchain technology—although Meta has now largely pivoted away from the Metaverse to AI.²⁴⁷ Obviously, none of this investment would have happened if the players involved did not see opportunities to profit in Web3—some have surmised that the real vision was for a Web3 where institutional players could use blockchain technology to make a small profit from every interaction that happens online.²⁴⁸

Even if we put aside cynicism about the bona fides of Web3 proponents and take it at face value, though, it is clear that the technology alone will not solve the Internet’s economic concentration problem. Visions of Web3 rely on the same blockchain technology as crypto.²⁴⁹ Blockchain technology is designed to ensure that no one single node in the system has centralized control over which transactions are added to the blockchain;²⁵⁰ the tokens and other protocols built on blockchains like Ethereum are designed to decentralize control by distributing ownership among token holders and automating transactions so that no humans are required to execute those transactions. As already discussed, many inefficiencies are incurred in order to achieve this kind of technological decentralization,²⁵¹ but even after all that, technological decentralization does not guarantee economic decentralization.²⁵² A system can have lots of nodes, but if someone controls a lot of those nodes, then they can control the system.

Aspirations notwithstanding, economic power in crypto is often highly concentrated and can be exploited in many ways. When projects are built on blockchains, for example, they often take the form of nominally “decentralized autonomous organizations,” in which participants are given governance tokens that allow them to vote on the direction of the project, which are then preprogrammed using software called a smart contract. However, as economists Makarov and Schoar have documented, “in the majority of crypto projects, developers and early investors choose to keep control of the platform by allocating significant stakes to themselves. In addition, even if developers do not have a large stake, in many cases they managed to maintain de facto significant control over the platform.”²⁵³

When it comes to the process of validating transactions on the blockchains themselves, again, there are strong economic incentives that have resulted in the concentration of validation power in the hands of just a few groups.²⁵⁴ There is evidence that some concentrated groups of validators process transactions in the order that reflects the wishes of the highest bidder and potentially harms the interests of those whose transactions are processed later (a practice known as maximal (formerly miner) extractable value (“MEV”)).²⁵⁵ We therefore need a solution other than blockchain if we wish to ensure that powerful technology platforms do not inhibit inclusive economic growth. That solution will likely be found in antitrust law, not in technology.

D. Security

The concentration of validation power in the hands of just a few groups will also create security vulnerabilities for blockchains. In 2022, cybersecurity researchers found that just four pools of Bitcoin validators working in concert could subvert the Bitcoin blockchain.²⁵⁶ There are also security vulnerabilities associated with the fact that no person or entity is designated accountable for ensuring that a blockchain’s software is maintained and kept secure from cyberattacks.²⁵⁷ In 2024, for example, the Department of Justice indicted two MIT graduate brothers for attacking the protocols of the Ethereum blockchain and stealing approximately $25 million of Ethereum cryptocurrency in 12 seconds.²⁵⁸ It is not realistic to think all of a blockchain’s users will protect and maintain the blockchain’s software by way of a collective effort,²⁵⁹ and so blockchain security tends to depend on informal groups of core software developers with no legal responsibilities.²⁶⁰ This is in stark contrast with regulated financial infrastructure providers like the Depositary Trust & Clearing Corporation, who must comply with the internationally accepted Principles for Financial Market Infrastructure. These Principles require, among other things, that financial infrastructure providers have a clear legal basis and governance structure, and policy and procedures around the management of risks (including security risks).²⁶¹ No such requirements are currently applied to blockchains.

Blockchains are not the only new fintech infrastructure that has generated new security vulnerabilities. Consider, for example, the push for open banking, which has been described as “the sharing and leveraging of customer-permissioned data by banks with third party developers and firms to build applications and services, such as those that provide real-time payments, greater financial transparency options for account holders, and marketing and cross-selling opportunities.”²⁶² Application programming interfaces (“APIs”) are computer programs that allow different technology systems to speak directly to one another, and they form the backbone of many open banking initiatives.²⁶³ However, API development is often outsourced to third-party software developers,²⁶⁴ and there can be quality control issues with regard to the maintenance and security of API software: it has been documented in the healthcare context, for example, that APIs are often the “weakest link” in cybersecurity protections.²⁶⁵

Even when APIs work well, their efficiencies may cause new security vulnerabilities, in the vein of the efficiency-induced fragilities discussed in Section II.B. One use case for APIs is to increase the speed of payments processing by making it easier for different systems to share payments data.²⁶⁶ However, APIs are not just more efficient at passing desired data between systems—they may potentially be very efficient at passing along problems as well. It is underappreciated that APIs may work as channels that transmit operational problems from one institution to another.²⁶⁷ If, by linking all the players in a financial system, we improve efficiencies in normal times but increase the chance that the players will all fail together if something goes wrong, then that will undermine financial stability. The same could be said of a financial system where just a few cloud computing providers efficiently store critical data for all of the world’s financial institutions.²⁶⁸

The broader idea behind open banking is to use APIs to make it easier for bank customers to share their data with, and thus obtain services from, other fintech providers. While pitched as a solution to some of the barriers to competition discussed in Section II.C, the rise of open banking implicates important questions about information security that we need to grapple with. Most obviously, using insecure APIs to transmit data creates opportunities for data breaches, fraud, and identity theft (fintech lending business models that assemble extensive non-traditional data profiles to address the creditworthiness of their users will also be attractive targets for such practices).²⁶⁹ But the sharing of data contemplated by open banking will also generate more subtle threats to our informational security, in the form of increased surveillance by an increased number of parties who can then use that data to manipulate us and others like us.

Raul Carillo has noted that fintech firms, like other technology companies, “reconstitute people into ‘data doubles,’ which can then be sorted, stored, scored, shared, and sold.”²⁷⁰ The increased sophistication of machine learning technology is only making this kind of data more valuable.²⁷¹ Data about consumers’ payments are particularly valuable, because those data yield rich, detailed, and unvarnished insights into how individuals behave and what they value.²⁷² Individuals will often fail to understand how their payments data might be used or what it communicates about them,²⁷³ but this kind of data can be used to surveil and then manipulate them.²⁷⁴ For example, Consumer Finance Protection Bureau (“CFPB”) Director Rohit Chopra raised concerns that “Big Tech firms can use detailed payments data to develop personalized pricing algorithms for e-commerce or increase engagement with behavioral advertising.”²⁷⁵ Alicia Solow-Niederman has emphasized that machine learning technology can now be deployed to “use available data collected from individuals to generate further information about both those individuals and about other people,” and these inferences can then be used to predict people’s behavior, manipulate them, and color reputations.²⁷⁶ Payments platforms may even use the data they collect about their users to deplatform them, censoring people’s ability to engage in financial transactions.²⁷⁷ These kinds of harms are not distributed equally, and often the most vulnerable groups will be surveilled the most as well as suffer the most from this surveillance: “[M]any lower-income users rely exclusively on mobile platforms that are less versatile, less amenable to user customization and control, and designed to maximize data sensing and harvesting.”²⁷⁸

The subtle and not-so-subtle harms associated with payments data collection prompt a need to minimize the collection of payments data in the first place.²⁷⁹ Fintech once again proposes a techno-solutionist solution to this problem, in the form of the pseudonymous blockchain. However, the blockchain does not minimize the production of data—it still records every transaction on the blockchain, although it cloaks them in pseudonymity.²⁸⁰ Blockchains make all transactions associated with a public key visible to everyone—meaning that once someone (law enforcement, an intimate partner, a stalker) knows someone’s public key, they can easily identify all of their transactions.²⁸¹ This reality exposes the folly of techno-solutionist proposals to use crypto to assist women seeking abortions in the United States, for example.²⁸² As one New York Times article put it, “though many crypto enthusiasts dangle the lure of anonymity . . . because of the precision with which the blockchain traces transactions, paying for abortions using crypto could potentially have the opposite effect: exposing both the women getting abortions and the people paying for them.”²⁸³ And not only is the blockchain itself highly legible, but those who use blockchain-based financial services typically also rely on a number of intermediaries who can also collect user data.²⁸⁴

If we truly wish to minimize the production of payments data, the most simple solution does not require any technology—lawmakers could take steps to preserve physical cash infrastructure, as cash transactions do not generate any data (there are also financial inclusion and resilience justifications for ensuring that cash continues to be accepted).²⁸⁵ As a supplement to physical cash, Carillo proposes a “Postal Cash Card” that can store value and facilitate transactions in a way that emulates debit cards but does not generate any data about the holder.²⁸⁶ Carillo’s proposal is an illustration of the principle that rejecting techno-solutionism does not necessarily mean rejecting technology: he has proposed a technological innovation (the card), but also provided a detailed proposal about the institutional context in which it will be offered (non-profit, at the post office), in a way that is responsive to expressed privacy concerns and pushes back against the tide of “data-vacuuming” in for-profit technological development. Carillo’s proposal also supplies another illustration of the point that when it comes to technological innovation, incentives matter, and so a technology developed by a public entity for a non-profit purpose is more likely to avoid the siren song of mass data collection than a private sector payments technology.

III. Financial Regulation and Techno-Solutionism

The previous Parts have described what techno-solutionism is and how it manifests in the context of fintech. As part of that discussion, Part II identified a panoply of fintech harms in need of regulation, but the law’s ability to rein in such harms is often stymied by techno-solutionism that it helps perpetuate. We certainly should not assume that the law is the only thing at work here—techno-solutionism is itself a complex phenomenon with many causes.²⁸⁷ However, illuminating financial regulation’s relationship with techno-solutionism is an important precondition to addressing the negative impacts of fintech.

A. Quick Primer on Financial Regulation

This Article has already observed that technology businesses are constructed in part by law; as Katharina Pistor has explained, the same is true for finance.²⁸⁸ Financial regulation is a constitutive part of fintech’s evolution, but the law as applied to fintech has sometimes had an unhealthy relationship with techno-solutionism. One problem with techno-solutionism is that it downplays the value of non-technological domain area expertise,²⁸⁹ but the history and context for why we regulate finance are critical parts of any discussion of how the law should address fintech. This Section therefore provides some background on financial regulation more generally, before the next Section demonstrates how financial regulation can both facilitate and be inhibited by techno-solutionism.

We have already explored techno-solutionism’s false neutrality.²⁹⁰ Along with this false neutrality often comes a false equivalence where different applications of technologies are painted as equally transformative and equally worthy of pursuit, notwithstanding that the benefits and costs of different applications will inevitably vary. We often hear fintech services analogized to other internet services—“send money around the world as easily as you can send an email”²⁹¹—but losing money is much more consequential than losing an email (certainly for the person involved, and potentially also for confidence in financial institutions and the broader financial system). Because the stakes are so high, and because we have so many historical examples of things going badly wrong in the financial system, finance has long been heavily regulated—in a way that couriered letters never were. Techno-solutionists ignore that history at their (or rather, our) peril.

Financial regulatory agencies are typically given mandates to pursue one or more of the following “menu” of financial regulatory goals: financial stability, consumer protection, investor protection, market efficiency, competition, and preventing financial crime.²⁹² Notably, no U.S. financial regulatory agency has an express statutory mandate to promote innovation. Instead, the banking agencies (the Federal Deposit Insurance Corporation (“FDIC”), Office of the Comptroller of Currency (“OCC”), and the Federal Reserve) were all formed in response to episodes of financial instability, and all have some form of “safety and soundness” mandate oriented toward ensuring the stability of the financial system²⁹³ (a council of these and other regulatory agencies known as the Financial Stability Oversight Council has an explicit mandate to promote financial stability).²⁹⁴ Financial stability regulation can have microprudential and macroprudential orientations: a microprudential approach seeks to ensure the solvency of individual financial institutions, whereas a more macroprudential approach seeks to protect the financial system as a whole by understanding and responding to how those financial institutions are interconnected, and to other market dynamics.²⁹⁵ Regardless of orientation, the ultimate goal of financial stability regulation is to ensure that the financial system can continue to supply the credit and transactional services on which the broader economy depends for growth.²⁹⁶

Market regulators like the Securities and Exchange Commission (“SEC”), Commodity Futures Trading Commission (“CFTC”), and CFPB were also formed in response to specific episodes of public harm. The SEC was created as an investor protection body in the wake of the stock market crash of 1929 and ensuing Great Depression (later, in 1996, the SEC was given additional mandates to promote efficiency and capital formation).²⁹⁷ The CFTC was created in 1974 in response to concerns about excessive speculation and manipulation in agricultural futures markets.²⁹⁸ The CFPB was formed in 2010 as a response to the consumer protection failures that contributed to the 2008 financial crisis,²⁹⁹ and has mandates to protect consumers and promote competition.³⁰⁰ In 2023, some Republican lawmakers sought to give the SEC an additional mandate to promote innovation, but the provision was eventually struck from the proposed legislation (had such a provision been enacted, it would no doubt have served as a weapon for those seeking to invalidate the SEC’s investor protection rules on the grounds that they stifled innovation).³⁰¹ In the absence of any express innovation mandates, efficiency and competition mandates are the ones typically invoked to justify innovation-friendly regulatory policies.

While it is possible to interpret efficiency and competition mandates as complementary to the goals of investor and consumer protection and financial stability,³⁰² efficiency and competition mandates are often framed in ways that conflict with those other goals (for example, as Part II explored, fintech that has been touted as promoting efficiency and competition can come at the price of exposing consumers and investors to predatory inclusion). If it is assumed that technology is the best, easiest, or only way to improve efficiency and competition, this techno-solutionist framing will lend itself to accommodative regulatory strategies that sacrifice investor, consumer, and financial stability protection goals. This is not just an issue for regulators: lawmakers in Congress have also sometimes been swayed by techno-solutionism. The next Section will consider whether fintech-specific legislative and regulatory proposals have helped perpetuate techno-solutionism in a way that undermines financial regulation’s ability to protect the public from harm.

B. Financial Regulation and Techno-Solutionism

Fintech poses many challenges for the enterprise of financial regulation: as Saule Omarova has observed, fintech disrupts financial regulation’s “basic normative thrust, its hierarchy of goals, its procedural mechanisms and tools, and its practical efficacy.”³⁰³ Furthermore, there are some truly novel privacy-type harms arising from the movement toward an economy “oriented principally toward the production, accumulation, and processing of information,” and existing financial regulation is not up to protecting against these kinds of harms.³⁰⁴ For example, existing financial privacy statutes (like the Gramm-Leach-Bliley Act) are simply not up to the task of responding to the types of privacy concerns explored in Section II.D,³⁰⁵ and existing financial regulation would similarly struggle to address the harms that would arise from the integration of large tech platforms and finance.³⁰⁶ With all that said, though, existing financial regulation can still force a reckoning with many of the negative consequences of fintech innovation and require them to be remedied. We have decades of experience with many of the kinds of harms that fintech is inflicting, and many of the problems raised in Part II have solutions based in existing legal remedies. The fact that new technologies have come to play an increasingly important role in delivering financial services has sometimes been weaponized (through cognitive capture and related strategies) to obscure the applicability of existing law, but we should not unquestioningly accept the premise that all previous grants of regulatory authority (and the rules implementing them) are hopelessly outmoded and obsolete as a result of technological change.

This Section will look at fintech-specific legislative proposals and administrative actions that illustrate how techno-solutionism is impacting the creation of new financial regulation, and the implementation of existing financial regulation (this is not a comprehensive survey of all fintech-related financial regulation to date, but instead a series of illustrative examples). The Section will finish by looking at a developing area of financial regulatory practice: regulation of the financial industry’s use of AI.

Legislative Proposals

As of the date of writing, the United States Congress has not enacted any fintech-specific legislation. However, a number of fintech-related bills have been introduced, and in a context where norms about how to respond to fintech and its harms are still developing, these bills can have an expressive valence. Some of these bills express the standard techno-solutionist message that

government regulation will stifle innovation in the dynamic tech sector, that it is unnecessary because market forces and the tech companies’ own benevolence will prevent social harms, and that, where regulation is called for, self-regulation is the only effective way to order the behavior of companies in this complex industry.³⁰⁷

Other proposed bills have sought to address the harms associated with fintech business models and serve as something of a counterbalance to the formation of techno-solutionist norms.

In particular, a number of crypto-related bills have been introduced into Congress. Some of these bills are targeted narrowly at the harms associated with using crypto for money laundering and sanctions evasion, consistent with the regulatory goal of preventing financial crime.³⁰⁸ The more far-reaching bills, however, (like the Lummis-Gillibrand Responsible Financial Innovation Act,³⁰⁹ the Digital Commodities Consumer Protection Act,³¹⁰ and the Financial Innovation and Technology for the 21st Century Act³¹¹ passed by the House of Representatives in May 2024) are widely regarded to have been driven by the crypto industry and their VC funders.³¹² Given their genesis, these bills are unsurprisingly deeply techno-solutionist in orientation, ignoring the history and context that led to the development of existing financial regulatory structures in their bid to allow the crypto industry to innovate outside of these structures: House Financial Services Committee leadership described its bill as “facilitating a regulatory environment that allows this technology to flourish in the United States.”³¹³

Among other problems, these bills seek to remove the vast majority of crypto assets from the investor protection oversight of the SEC and give jurisdiction to the CFTC—a regulatory body that has significantly fewer resources than the SEC, lacks a statutory investor protection mandate or culture of protecting retail investors, and also allows exchanges to self-certify the assets they list.³¹⁴ Doing so would deprive investors of the protections afforded by the SEC’s registration and disclosure regime for public offers and sales of securities, as well as the protections of securities broker/dealer and exchange registration requirements that would help mitigate the conflicts of interest inherent in the crypto exchange business model.³¹⁵ As I testified in 2022, these kinds of bills “are designed to offer fewer investor protections than the existing securities laws, and they were intentionally designed in this way in order to facilitate crypto innovation.”³¹⁶ They would also lend legitimacy and credibility to crypto assets in the eyes of both retail and institutional investors, expanding a market for such assets that the industry has struggled to sustain in the absence of government endorsement.³¹⁷ Furthermore, these bills would create regulatory arbitrage opportunities outside of the crypto industry: while crypto advocates have described these bills as bespoke regimes for crypto, issuers of other types of securities would also have incentives to migrate into the new, lighter-touch regime (which would seemingly be accessible to them if they simply recorded ownership of their securities on a blockchain). Finally, these bills often suffer from trying to tie law too specifically to crypto technology and business models at a particular moment in time, ensuring that technological innovation could be used to arbitrage any such law that is enacted, quickly rendering the investor protections that are included in the bill obsolete.

There have also been crypto bills introduced that would undermine the financial stability regulation implemented by the federal banking agencies by creating new lighter-touch regulatory regimes for stablecoins.³¹⁸ The stated aim of these bills is to support stablecoins as “an exciting technological development that could transform money and payments,”³¹⁹ notwithstanding that from a technological perspective, stablecoins are extremely ill-suited to large-scale payments processing.³²⁰ As I previously testified regarding the Stablecoin TRUST Act introduced by then-Senator Toomey, the Lummis-Gillibrand Responsible Financial Innovation Act, and a draft House Financial Services Committee stablecoin bill:

If any of these bills were enacted, they would authorize banks to issue stablecoins, making it highly probable that the Federal Reserve would feel compelled to bail out a failing stablecoin (which would operate as an indirect bailout of the crypto speculation the stablecoins are used for). Even more problematic, those bills would also authorize non-banks to issue stablecoins, yet be subject to lighter-touch regulation ex ante than traditional banks.³²¹

This critique applies equally to a later iteration of the House Financial Services Committee stablecoin bill that was voted out of committee in July 2023.³²²

The techno-solutionism inherent in these crypto bills is all the more striking because crypto inverts the typical dynamic where the benefits of innovation are immediately obvious, but the harms take longer to manifest. As Federal Reserve Vice Chair for Supervision Michael Barr has observed, people often “assume too quickly that they know how the new products work, and novel products can appear both safe and lucrative, particularly if they have not been tested through bouts of market stress.”³²³ This kind of dynamic can unsurprisingly make lawmakers loath to crack down on new technologies with evident benefits, but with crypto, harms have been evident for some time, while the industry still struggles to articulate concrete use cases after fifteen years.³²⁴ As explored in Part II, there are strong impediments to crypto-related innovation ever delivering on its promises of financial inclusion, efficiency, competition, and privacy: it is a testament to the rhetorical power of techno-solutionism that facilitating this “solution in search of a problem” remains a defensible goal for many Members of Congress.

Of course, techno-solutionism is not the only force at work here. When it came time to vote on the Financial Innovation and Technology for the 21st Century Act, Members of Congress facing tough reelection campaigns were loath to draw the ire of the crypto industry (the pro-crypto Fairshake Political Action Committee amassed an unprecedented $114 million war chest from the crypto industry and prominent venture capitalists to spend in the 2024 election cycle).³²⁵ But still, techno-solutionism was used as window dressing. When that bill was passed by the House of Representatives with bipartisan support, House Financial Services Committee Chair Patrick McHenry made the following statement:

FIT21 provides the regulatory clarity and robust consumer protections necessary for the digital asset ecosystem to thrive in the United States. The bill also ensures America leads the financial system of the future and remains a hub for technological innovation.³²⁶

Some other non-crypto fintech bills have evinced a less techno-solutionist approach to fintech business models, though. For example, Congressman Jesus García introduced a “Close the ILC Loophole Act,”³²⁷ designed to prevent technology platform companies from exploiting a loophole in the Bank Holding Company Act that could allow those companies to acquire banks without being regulated by the Federal Reserve (which would essentially allow them to avoid financial stability regulation).³²⁸ Congressman Lynch also introduced an “ECASH Act”³²⁹ that proposed to direct the Treasury Department to develop and issue “an electronic version of the U.S. Dollar for use by the American public.”³³⁰ This bill is an example of technology-focused public policy that is not techno-solutionist: it is focused on developing technology to solve financial inclusion concerns, but is sensitive to non-technological context. In particular, in response to the kinds of consumer protection and privacy concerns raised in Section II.D, the proposal for ECASH is intended to “preserve a role in our financial system for smaller anonymous cash-like transactions which are currently transacted in physical dollars, and which have seen a rapid decline in use.”³³¹

Administrative Action

While this discussion has focused so far on Congress, the federal financial regulatory agencies are on the front lines of dealing with fintech in the United States (state regulation is also relevant but largely beyond the scope of this Article).³³² Unlike unpassed legislation, the actions taken by regulatory agencies can have more than just normative valence. We will now examine a sample of the fintech-related rulemaking, monitoring, and enforcement activities of financial regulators and consider whether they are perpetuating, or being stymied by, techno-solutionism.

Acting Comptroller of the Currency Michael Hsu identified a dichotomy between regulators “taming” and “accommodating” financial innovation. Taming forces the technology to “conform to regulatory standards,” whereas an accommodative stance that dictates that “regulation should adjust to . . . and accept the new technology and possibilities for what they are” is much more techno-solutionist.³³³ Accommodative regulators may take steps to actively loosen regulatory requirements, but often, accommodation takes the form of inaction with regulators simply refraining from exercising their jurisdiction when new technologies are involved. Either way, an overly accommodative stance will subordinate regulatory goals to the claimed promise of the technology, neglecting the reality that sometimes the negative consequences of a technology are such that accommodating that technology is bad policy (particularly if the technology itself is considered by independent experts to have limited utility).³³⁴

Another framing that financial regulators often use when discussing fintech regulation is “tech neutrality,”³³⁵ or “same activity, same risk, same rules.”³³⁶ This is often a good starting point for taming fintech, because it recognizes that regulatory arbitrage should not be allowed simply because a new kind of technology is involved: techno-solutionism may otherwise lull us into believing that new technologies are doing the disrupting, when in reality the only disruption may be lawyers devising new regulatory arbitrage strategies that can be “sold” to lawmakers using techno-solutionist rhetoric. However, a posture of technological neutrality can turn out to be accommodative in practice if regulators are too amenable to the fintech industry’s own techno-solutionist descriptions of activities and risks as novel, or if regulators assume that the technology is just another way of discharging an existing economic function and won’t pose any sui generis risks of its own.

Regulators should dig beneath the techno-solutionism to ask fundamental preliminary questions about whether a technology actually performs the activity its purveyors say it performs—otherwise regulators may mistakenly apply the wrong regulatory regime. They also need to ask whether changes in technological delivery mechanisms are creating new kinds of risks (for example, new technology-related operational risks). Although existing regulatory approaches will often be useful, sometimes new methods will need to be devised in order to discharge existing mandates in a financial system populated by new technologies. Regulators should not be deterred from developing these new methods by a desire to be perceived as technology neutral.

Unfortunately, reality does not always meet these ideals. This is no doubt due, in part, to cognitive capture. The financial industry has long weaponized complexity to deflect regulatory scrutiny,³³⁷ but with the rise of fintech, that financial complexity is being overlaid with technological complexity. Many financial regulatory agencies are primarily staffed with lawyers, economists, and accountants who may need to rely on the fintech industry to help them understand how a particular technology works,³³⁸ and this can be a fertile environment for cognitive capture to develop. Of course, individual agency personnel are just that—individuals. It is often remarked that “personnel is policy,”³³⁹ and those with some technological expertise may feel more empowered to push back against techno-solutionism.

An individual regulator’s susceptibility to techno-solutionism may also be impacted by their political ideology. Techno-solutionism is often aligned with libertarianism,³⁴⁰ and those dispositionally opposed to government involvement will, all things being equal, probably be more supportive of agency policies that accommodate private sector innovation. The following discussion of fintech-related administrative actions sometimes demonstrates whipsaws in an agency’s fintech policy that can be partially explained by changes in the political orientation of agency leadership. This dynamic has been most obvious with the CFPB; at the other end of the spectrum, the SEC has been quite consistent in its fintech policy across administrations.³⁴¹

i. Rulemaking and Guidance

There have been some proposals for formal fintech-specific administrative rulemakings, but federal financial regulatory agencies have often preferred to issue informal guidance when it comes to fintech. The formal rulemaking process has sometimes struggled to address rapid technological change in a timely manner,³⁴² and the Supreme Court’s embrace of the major questions doctrine has created greater uncertainty about courts’ willingness to invalidate rulemakings pertaining to new technologies.³⁴³ In June of 2024, the Supreme Court also overruled the longstanding Chevron precedent that had previously directed courts to defer to reasonable agency interpretations of statutory provisions.³⁴⁴ Given these challenges, it is unsurprising that regulators of all stripes have often preferred to rely on more nimble informal guidance when it comes to fintech.

Like the legislative proposals discussed above, fintech-related informal guidance and proposed rulemakings have been a mixed bag with some embracing, and some rejecting, techno-solutionist approaches. Notably accommodative administrative actions include the OCC’s 2018 announcement of a nonbank fintech charter and the CFPB’s 2019 proposal for a fintech regulatory sandbox. Both of these had a techno-solutionist orientation, although neither were ultimately successful in their accommodations. The OCC’s proposed fintech charter was a response to concerns that nonbank fintech firms had to comply with consumer protection regulations in every state where they did business.³⁴⁵ A national special purpose charter from the OCC would have preempted many of these state consumer protection regulations—and the OCC justified the proposal on the assumption that it would facilitate technological innovation that would further financial inclusion.³⁴⁶ Ultimately, however, this proposal was mired in legal challenges and industry largely eschewed the fintech charter.³⁴⁷

The CFPB’s proposed “Compliance Assistance Sandbox” also sought to preempt the enforcement of state consumer protection laws but was ultimately abandoned for failing to advance its “stated objective of facilitating consumer-beneficial innovation.”³⁴⁸ Before it was abandoned, though, this sandbox had a very techno-solutionist orientation. For example, in a policy document that was incorporated by reference into the Compliance Assistance Sandbox policy, the CFPB expressly rejected a consumer group’s contention that a sandbox was unnecessary because fintech products rarely raised “novel questions of law and policy.”³⁴⁹ The policy document also stated the techno-solutionist position that “the Bureau’s statutory mission of protecting consumers is not limited to vigorously enforcing the law. It includes facilitating innovation in markets for consumer financial products and services, as innovation drives competition, which in turn lowers prices and promotes access to more and better products and services.”³⁵⁰

Regulatory sandboxes have been adopted elsewhere (both internationally and at the state level in the United States) and are generally techno-solutionist in orientation: they loosen financial regulations and use scarce regulatory resources for the primary purpose of promoting private-sector fintech innovation.³⁵¹ This implicitly positions “regulation” as the problem that needs to be solved, and if regulators fixate on the private-sector innovation they hope their sandboxes will generate, that may be a distraction from the public goods that regulation was adopted to create and the social harms that regulation was adopted to protect against. Regulatory sandboxes also put regulators in the unusual position of championing participating private sector firms to help them succeed in the marketplace—likely a recipe for cognitive capture.³⁵²

Following the appointment of Rohit Chopra as Director of the CFPB in 2021, the CFPB evinced a far less techno-solutionist stance in its informal guidance and proposed rules. In September 2023, the CFPB responded to concerns about algorithmic discrimination by issuing guidance that made clear “that lenders must be able to accurately inform consumers as to why an adverse credit decision was made and explain specifically what factors led to the decision,” emphasizing that the use of AI is not a get-out-of-jail-free card when it comes to compliance with laws like the Equal Credit Opportunity Act.³⁵³ In October 2024, the CFPB finalized a Personal Financial Data Rights rule to implement the previously dormant Section 1033 of the Dodd-Frank Act.³⁵⁴ This was an attempt to address a true lacuna in financial regulation and speaks to new kinds of privacy harms and the market power associated with financial data.³⁵⁵ In November 2023, the CFPB proposed a rule designed to crack down on regulatory arbitrage by nonbank payments providers, which will be discussed in more detail below.³⁵⁶ It is worth noting that the CFPB is itself a creation of the digital era: launched in 2011 with an intentional technological bent, the agency has been praised for its technological savvy, and that savvy may have equipped the agency to push back against techno-solutionist claims.³⁵⁷

Turning to crypto, regulators have not promulgated any formal rules, but they have issued a significant amount of informal guidance. In June 2018, then-SEC Corporate Finance Director Bill Hinman delivered what has come to be known as the “Hinman speech” in which he expressed his excitement about blockchain’s potential for decentralization, and he suggested that tokens might not be considered securities “[i]f the network on which the token or coin is to function is sufficiently decentralized.”³⁵⁸ This speech uncritically accepted the crypto industry’s decentralization rhetoric, neglecting the fact that blockchain’s technological decentralization does nothing to prevent the economic centralization that the SEC is concerned with.³⁵⁹ Overall, however, the SEC has generally looked beyond that rhetoric and concluded that crypto tokens are subject to the securities laws—as SEC Chair Gary Gensler stated in 2022:

Of the nearly 10,000 tokens in the crypto market, I believe the vast majority are securities. Offers and sales of these thousands of crypto security tokens are covered under the securities laws. . . . For the past five years . . . the Commission has spoken with a pretty clear voice here: through the DAO Report, the Munchee Order, and dozens of Enforcement actions, all voted on by the Commission. Chairman Clayton often spoke to the applicability of the securities laws in the crypto space.³⁶⁰

As for the banking regulators, the OCC initially took a somewhat accommodative position on crypto, issuing a number of documents authorizing banks to hold crypto assets in custody for their customers and to hold reserves for stablecoins.³⁶¹ These documents sometimes evince an unquestioning acceptance of crypto’s claims to be a wealth-building and payments technology; for example, the letter authorizing banks to hold stablecoin reserves starts from the premise that “[r]eports suggest stablecoins have various applications, including the potential to enhance payments on a broad scale, and are increasingly in demand.”³⁶² This premise lacks a strong foundation, however, given blockchain technology’s inability to scale to the level needed to compete with traditional payments providers.³⁶³

More recently, guidance from banking regulators has paid less heed to unsubstantiated promises of crypto’s technological innovation. Most notably, in January 2023, the Federal Reserve, FDIC, and OCC jointly issued strong guidance indicating their expectations that banks would remain separated from crypto, in order to ensure the continuing stability of the banking system.³⁶⁴ In that statement, the agencies articulated the following non-techno-solutionist position:

Given the significant risks highlighted by recent failures of several large crypto-asset companies, the agencies continue to take a careful and cautious approach related to current or proposed crypto-asset-related activities and exposures at each banking organization.³⁶⁵

ii. Monitoring

Once regulatory bodies have promulgated rules or informal guidance, they must then engage in supervision, examination, or other monitoring to ensure compliance. It can be difficult to interrogate how these processes are being discharged, as they are often confidential, performed away from the public eye.³⁶⁶ Sometimes information about these processes is made public, however, and Art Wilmarth has used publicly available sources to document many of the entanglements between banking and crypto that banking supervisors have permitted.³⁶⁷ Although it seems unlikely that these entanglements could presently threaten the stability of the overall financial system—particularly because regulators have not authorized any U.S. bank to invest directly in crypto assets or accept them as collateral—such entanglements did help bring down Signature Bank and Silvergate Bank, which relied heavily on the crypto industry for deposits and fee income.³⁶⁸ The failure of these banks exacerbated a broader regional banking crisis in 2023, and in its report on that crisis, the FDIC conceded that “in retrospect, the FDIC could have acted sooner and more forcefully to compel the bank’s management and its board to address these [AML and risk management] deficiencies more quickly and more thoroughly.”³⁶⁹ Nothing was said in the report, though, about whether regulators had accommodative attitudes toward crypto business models and technologies that helped induce their inaction.

Of course, there is a preliminary question when it comes to fintech supervision, which is whether financial regulators even believe they have supervisory jurisdiction over fintech business models in the first place.³⁷⁰ If industry actors can successfully convince regulators that their technology is too new to fit into existing regulatory structures, then they will avoid supervision, examination, or other monitoring. James Kwak observed that in the lead-up to the 2008 crisis, “[t]he financial sector . . . seems to have gained the cooperation of the federal regulatory agencies . . . [in part] by convincing them that financial deregulation was in the public interest.”³⁷¹ Techno-solutionist narratives make these same claims about advancing the public interest by getting law out of the way so that technological solutions can flourish.

With regard to fintech lending, for example, Chris Odinet has spelled out the arbitrage strategies that have allowed these businesses to operate largely outside of the supervisory powers of the CFPB and federal banking agencies.³⁷² Odinet argues that this regulatory arbitrage is the main point of the fintech lending business model: to seek an end-run around both state usury laws and bank capital regulations by having fintech providers partner with or “rent” a bank in a way that avoids both types of rules.³⁷³ Fintech lenders (and their associated banks), however, describe these business models as driven by superior technological interfaces and credit scoring systems—this allows them to tap into the positive political valence of technological innovation to facilitate cognitive capture.³⁷⁴ When regulators are persuaded into inaction by such rhetoric, then consumer harm can be perpetuated without oversight.

Many fintech payments providers also engage in regulatory arbitrage. To use Venmo as an example, federal banking regulation would apply to balances in Venmo accounts if they were construed as deposits, but Venmo has entered into carefully crafted relationships with regulated banks to avoid such characterization.³⁷⁵ However, nonbank payments providers can pose consumer protection and financial stability concerns. Awrey and Zwieten have explained that some Venmo customers store funds in Venmo accounts and assume that those funds will remain available for transactions, notwithstanding that Venmo may have used the funds elsewhere or that the funds may be commingled in a Venmo bankruptcy.³⁷⁶ Venmo customers may not appreciate these vulnerabilities now, but if concerns develop about Venmo and the way it holds customer funds, customers may pull their funds out in something that closely resembles a bank run.³⁷⁷

Different nonbank payments providers pose different permutations of these prudential and consumer protection concerns, but have generally escaped the types of stringent regulation that apply to banks and other insured deposit–taking institutions.³⁷⁸ The CFPB expressed a willingness to help level this playing field, however, by exercising existing authorities over firms that serve as service providers for banks,³⁷⁹ and by proposing a rule that would establish an examination program for larger nonbank digital consumer payment companies.³⁸⁰ In so doing, the CFPB rejected the contention that technology companies should be treated differently from legacy financial institutions when they provide equivalent services.

iii. Enforcement

When regulatory agencies bring enforcement actions against firms deploying fintech business models and technologies, those enforcement actions tend to signal a rejection of techno-solutionism. The mere fact that an enforcement action was brought tends to suggest a willingness on the part of a regulatory body to look behind the techno-solutionist rhetoric and conclude that new technologies are being used to perpetuate familiar harms for which there are legal consequences.

To be clear, enforcement may be made more challenging by increasing technological sophistication. For example, when it comes to the CFPB seeking to address discrimination in the provision of credit, enforcement is “increasingly difficult when decisions . . . are made via criteria deeply embedded in complex algorithms used to detect patterns in masses of data.”³⁸¹ As the Financial Stability Oversight Council (“FSOC”) has noted, “[m]any AI approaches present ‘explainability’ challenges that make it difficult to assess the suitability and reliability of AI models and to assess the accuracy and potential bias of AI output.”³⁸² But the harm identified here (discrimination in the provision of credit) is familiar, and the CFPB’s necessary legal authority (pursuant to the Equal Credit Opportunity Act) holds up, despite the technological innovation. The CFPB confirmed that it will enforce the law “regardless of the technology being used” and that arguing that “the technology used to make a credit decision is too complex, opaque, or new is not a defense for violating these laws.”³⁸³

A techno-solutionist approach to enforcement, on the other hand, is likely to manifest in accommodative inaction. Financial regulators who are cognitively captured by techno-solutionist rhetoric may come to believe that technological solutions are exceptional and therefore both need and deserve special treatment under the law—and so they refrain from enforcing existing laws. Ryan Calo has argued that technology is exceptional “when its introduction into the mainstream requires a systematic change to the law or legal institutions in order to reproduce, or if necessary displace, an existing balance of values.”³⁸⁴ This is the kind of argument the crypto industry makes as to why blockchain-hosted assets should not be subject to the long-standing, technology-neutral “Howey test” for determining whether something is an investment contract regulated by the SEC.³⁸⁵ Another well-worn trope of techno-solutionism is the belief that technology can solve its own problems: this trope, coupled with exceptionalist arguments that technological change is too rapid and complex for the law to effectively address, is often invoked in support of calls for self-regulation.³⁸⁶ The crypto industry has made repeated arguments that it should regulate itself.³⁸⁷

Fortunately, many regulatory personnel have not been swayed by these kinds of techno-solutionist arguments. In particular, the SEC has been quite aggressive about enforcing the securities laws against the crypto industry;³⁸⁸ in so doing, it is challenging techno-solutionist claims that the use of decentralized technology changes the economic realities of securities investments.³⁸⁹ These claims are the latest in a long line of tech industry arguments that decentralization defies regulation,³⁹⁰ but as of the time of writing, courts have largely agreed with the SEC’s anti-techno-solutionist approach (with one notable partial exception).³⁹¹ A district court also upheld the CFTC’s determination that the Ooki DAO, a blockchain-hosted decentralized autonomous organization, was a “person” within the meaning of the Commodity Exchange Act and could therefore be held liable for violations of that law.³⁹²

Cryptocurrencies have also come to play an important role in funding criminal activities and in sanctions evasion.³⁹³ While Section II.D emphasized the legibility of transactions recorded on a blockchain, sophisticated criminals use tools like mixers and tumblers to make it much harder for authorities to trace funds³⁹⁴—in response, the Office of Foreign Assets Control (“OFAC”) has sanctioned virtual currency mixers like Tornado Cash, Blender, and Sinbad.³⁹⁵ Another high profile enforcement action in this area was brought by the Department of Justice (working in conjunction with OFAC, Financial Crimes Enforcement Network (“FinCEN”), and the CFTC) against the Binance cryptocurrency exchange for failing to comply with anti-money laundering and other laws. Using decidedly non-techno-solutionist rhetoric, Attorney General Merrick Garland announced the charges by saying “using new technology to break the law does not make you a disruptor, it makes you a criminal.”³⁹⁶

Many of these enforcement actions have been criticized by the crypto industry (and sometimes by crypto industry–supportive Members of Congress) for impeding fintech innovation.³⁹⁷ The crypto industry has in particular decried the “regulatory uncertainty” created by such enforcement actions and court decisions, arguing that such uncertainty has undermined the crypto industry’s ability to thrive.³⁹⁸ However, the SEC has been largely unequivocal in its communications that the vast majority of crypto tokens are securities: as Chair Gensler has said, “not liking the message is not the same thing as not receiving it.”³⁹⁹ In any event, few areas of the law provide perfect certainty, and as the Supreme Court implicitly recognized in formulating the Howey test, preserving a degree of flexibility often proves quite useful in “future-proofing” the law.⁴⁰⁰ Experience with the legal innovation of the limited liability company also makes it clear that perfect certainty under the securities laws is not necessary for something to thrive: courts have refused to lay down bright-line rules for when interests in limited liability companies will be considered investment contracts under the Howey test,⁴⁰¹ but limited liability companies have nonetheless experienced exponential growth in popularity since they were first created.⁴⁰² Given all of this, crypto industry complaints about the uncertain application of existing laws often seem like a pretext for an unwillingness to comply.

It may be that running a legally compliant business is not economically viable for some crypto industry participants, but without techno-solutionism to cloud our vision, we may be glad to see the end of businesses that have little to recommend them other than regulatory arbitrage. While Brummer, Yadav, and Zaring have argued that regulatory agencies “risk being viewed as less technocratic and expert and driven more by selfish, rather than public interests” when they bring crypto enforcement actions,⁴⁰³ this assumes a techno-solutionist public interest in seeing the crypto industry and its innovation flourish. While enforcement actions may indeed lessen the legitimacy of regulators in the eyes of the crypto industry and some crypto users, those same enforcement actions may very well bolster the legitimacy of regulators in the eyes of other members of the public (the vast majority of whom are distrustful of crypto).⁴⁰⁴ And of course, once something goes wrong, the public will always ask, “[w]here were the regulators?” Techno-solutionist accommodative inaction can be very damaging to the legitimacy of a regulatory agency in retrospect.

Looking Forward: Financial Regulation and AI

AI is currently the “buzziest” technology both within and outside of the financial industry. In the wake of OpenAI’s launch of ChatGPT, much of the hype, fervor, and VC funding pertaining to crypto shifted to AI-related technologies.⁴⁰⁵ These AI technologies can be applied in any number of different fields,⁴⁰⁶ but this Section’s discussion will focus primarily on whether financial regulation will be stymied by techno-solutionism associated with the application of AI-related technologies to financial services.

As a starting point, it’s worth noting that AI-related technologies are particularly likely to invite techno-solutionism because they are especially effective in obscuring the reality of human agency and incentives: the very name “artificial intelligence” connotes autonomy and superiority to human flaws and imperfections. The technologies we call “artificial intelligence” do not currently display characteristics of real human intelligence, though—they lack the ability to reflect on or engage with their existence in a world where others exist too.⁴⁰⁷ Some have suggested that the term “applied statistics” is therefore a more accurate description of these technologies, but the “AI” label has stuck.⁴⁰⁸ This label can serve to distract people from the important role that human computer scientists play in programming the software that will “learn” from the data presented to it, and the role that data scientists can play in selecting and curating that data.⁴⁰⁹ The term “learn” is in quotation marks because AI does not learn in the same way a human does. AI does not seek to establish causality or engage in formal reasoning but instead looks for correlations (even weak correlations) in data and uses these to formulate decision-making rules that will guide it in performing an assigned task⁴¹⁰ (hence the moniker “applied statistics”).

This explanation of AI encompasses “generative AI” like ChatGPT, as well as earlier generations of machine learning technology that were used in financial services prior to the development of generative AI. The primary difference is that unlike previous iterations of AI, generative AI can generate uniquely constructed content of its own in the form of things like text, images, and code.⁴¹¹ Despite the developments in Generative AI, most AI-driven financial services applications currently rely on machine learning technologies that were available before the advent of ChatGPT, particularly in risk management and portfolio construction contexts.⁴¹² There is, however, interest in using Generative AI to improve consumer-facing chatbots and for report summarization; some financial services firms have also expressed interest in using generative AI in regtech tools (for example, fraud detection and AML compliance tools, as well as automated reporting).⁴¹³

There is a particular interest in the efficiency gains that generative AI can make⁴¹⁴—but those claims to efficiency are quite techno-solutionist. The large language models (“LLMs”) used for generative AI are extremely expensive to create, and after those sunk costs have been incurred, they will continue to be extremely expensive to maintain and run—at the most basic level, they require significant amounts of electricity and water⁴¹⁵ (as with blockchains, we should not forget the environmental costs of these technologies). Efficiency gains therefore depend on LLMs eliminating the cost of human oversight, but LLMs can “hallucinate” incorrect answers, often informed by specious correlations drawn from lackluster data.⁴¹⁶ More generally, AI is poorly suited to predicting low-probability but high-stakes events, and widespread reliance on such AI tools could result in more homogenous behavior that ends up undermining assumptions in the data that the tools were trained on.⁴¹⁷ Because of these limitations, humans who are highly skilled in domain expertise should be kept in the loop to check the output of AI tools if that output is to be used in a high stakes risk management or portfolio construction situations (individuals without this domain expertise are more likely to fall prey to automation biases and defer to the model’s output unquestioningly).⁴¹⁸ A combination of AI and human intelligence will often produce the most accurate answers, but that increased accuracy will be very expensive.⁴¹⁹

To reduce costs, some in the financial industry may seek to automate their risk management and portfolio construction practices while limiting or dispensing with the use of domain experts—this could ultimately threaten the stability of our financial system.⁴²⁰ AI may also be used to arbitrage regulation. For example, banks could potentially arbitrage an important kind of microprudential regulation known as capital requirements by using “machine learning-capable risk management models” and “selectively exposing those models to data sets that neglect tail risks.”⁴²¹ If tacitly permitted, this kind of arbitrage could result in lower bank capital levels (undermining a cornerstone of financial stability regulation), and could even harden into a regulatory entrepreneurship strategy if industry participants “pressure regulators to certify that the output of a particular . . . tool constitutes sufficient compliance.”⁴²²

This arbitrage is a problem of degree, not an entirely new problem. Financial institutions were attempting complex regulatory arbitrage and entrepreneurship strategies with regard to capital requirements long before machine learning came along.⁴²³ In many ways, these old problems have simply been amped up by the inscrutability of AI. Long-standing calls for capital regulation to be simplified would also be quite effective in making capital regulation more robust to AI-facilitated arbitrage.⁴²⁴ Unless and until such reforms are adopted, though, it is true that banking regulators will need increased technological sophistication to scrutinize algorithms and data sets in order to detect AI-enabled arbitrage of regulatory capital requirements.

The use of AI could also amplify consumer protection problems, like those associated with discrimination in the provision of credit.⁴²⁵ Once again, we have existing regulatory frameworks within which to respond to many of these issues so long as regulators are not too dazzled or cowed by the technology, and the CFPB has indicated its willingness to continue enforcing its anti-discrimination laws when AI tools have been used.⁴²⁶ In one speech, CFPB Director Chopra noted that

AI certainly poses new risks, or at least exacerbates old ones. While many new approaches may be necessary, it is clear we must all make use of existing laws and regulations on the books. In the United States . . . there is no ‘fancy new technology’ carveout to existing laws. Even if firms are using a complex new algorithm or AI model, they must follow the law.⁴²⁷

This is a promising start. Chopra recognizes that many of the problems likely to be caused by the use of AI in finance are familiar ones that should not be accommodated but instead should be addressed with existing regulatory tools. He also remains humble about truly new problems that could emerge from the use of AI and new regulatory tools that may be needed to address them.⁴²⁸ The question is—given that “personnel is policy”—will other financial regulators and lawmakers follow suit?

The VC industry has invested heavily in AI and has strong incentives to deploy cognitive capture, regulatory arbitrage, and regulatory entrepreneurship strategies in order to make those investments more profitable.⁴²⁹ Andreessen Horowitz has been particularly aggressive in deploying techno-solutionist rhetoric in lobbying for favorable legal and regulatory treatment for crypto⁴³⁰ and has made it clear that it plans to deploy a similar strategy for AI. In a December 2023 blog post, Andreessen Horowitz’s co-founder Ben Horowitz announced:

We are non-partisan, one issue voters: If a candidate supports an optimistic technology-enabled future, we are for them. If they want to choke off important technologies, we are against them. Specifically, we believe . . . Artificial Intelligence has the potential to uplift all of humanity to an unprecedented quality of living and must not be choked off in its infancy . . . Every penny we donate will go to support like-minded candidates and oppose candidates who aim to kill America’s advanced technological future.⁴³¹

To give you an example of the kind of “optimistic technology-enabled future” that Horowitz will lobby fiercely to protect from regulation, Andreessen Horowitz has funded a startup at the intersection of AI and crypto known as Worldcoin.⁴³² Co-founded by Open AI-CEO Sam Altman, Worldcoin is using a device known as “The Orb” to collect millions of retinal scans in the developing world in exchange for a crypto asset that has no real value at present, “but someday, Worldcoin says, it’ll form the basis of a new economic system and maybe will also provide a universal basic income stream for the world’s poor.”⁴³³ This is an exquisite example of techno-solutionism: Worldcoin has been designed to respond to problems that do not yet exist, but that Worldcoin’s founder expects his other technology to cause (i.e., the lack of income opportunities that will be available if AI renders many jobs obsolete). If AI does indeed end up eliminating lots of jobs, we will need policy solutions that take into account the dignity of work as well as people’s need for income.⁴³⁴ Worldcoin, however, offers (at best) an oversimplified solution to such a complex problem—a potential method for paying people to watch their screens once they no longer have jobs. And Worldcoin downplays the privacy concerns associated with training its models on the biometric data of vulnerable people and the predatory aspects of paying those people for their biometric data with a potentially worthless crypto asset.⁴³⁵

It remains to be seen how lawmakers and regulators will respond to Silicon Valley’s techno-solutionist appeals to allow this and other kinds of AI-related innovation to flourish.

IV. A Possible Antidote to Techno-Solutionism

The primary goal of this Article has been to identify the techno-solutionism rife in the fintech industry and to explore how this techno-solutionism has both stymied and been facilitated by financial regulation. Techno-solutionist narratives gain some of their power through unchallenged repetition,⁴³⁶ and so this very act of calling out fintech’s techno-solutionist narratives will hopefully go some small way toward inoculating lawmakers, regulators, and the public against fintech’s most outlandish claims.⁴³⁷ As Morozov notes in the postscript to his book, we cannot eliminate solutionism, but we can “ridicule” it,⁴³⁸ hopefully depriving it of some of its power.

Right now, there may not be much more that can be done to diminish techno-solutionism and its detrimental impacts on regulatory regimes designed to protect the public from harm. Techno-solutionism is entrenched in our society in many ways: by corporate political expenditures (including expenditures by venture capitalists, as already discussed);⁴³⁹ by the lack of political access for the very communities impacted by the problems to be solved;⁴⁴⁰ by challenges in inducing skilled technologists to work for government agencies;⁴⁴¹ by tech industry funding of academic research on technology and its impacts;⁴⁴² by limited public support for public sector innovation (which could stand as a counterfactual techno-solutionist narrative);⁴⁴³ by computer science pedagogy that fails to teach students how to conceptualize or contextualize the problem to be solved;⁴⁴⁴ and surely much more. This Article has consistently rejected techno-solutionism’s silver bullet solutions, and there are also no silver bullet solutions for addressing techno-solutionism itself.

Still, as this Article has emphasized, personnel is policy, and we have already seen examples of policymakers who are predisposed toward pushing back against fintech’s harms—these kinds of policymakers can be empowered by the articulation of an alternative to techno-solutionism. As a heuristic, techno-solutionism will default to permitting technological innovation, regardless of potential harms: it becomes easy to “simply assume the rightful existence of [technologies] and go straight to building guardrails so they can flourish.”⁴⁴⁵ When it comes to assessing fintech’s claims to improve financial inclusion, efficiency, competition, and security, what is needed is a fundamental shift in rhetoric and perspective away from techno-solutionism and toward contextually-informed skepticism regarding technological solutions.

Adopting a posture of contextually informed skepticism is precautionary to a degree but does not require the embrace of an overly strong “precautionary principle” where activities have to be proven riskless before they can proceed. Contextually informed skepticism is therefore not incompatible with innovation; instead, it sets up incentives for the kind of innovation that is mindful of harms and consequences.⁴⁴⁶ It is, however, likely that contextually informed skepticism from regulators will impede some innovation in the name of protecting the public from harm—which will inevitably invite intense criticism from the tech industry.⁴⁴⁷ However, a posture of contextually informed skepticism can embolden policymakers to take this industry criticism with a grain of salt, because contextually informed skepticism recognizes that not all innovation is socially beneficial and that the tech industry’s appreciation of potential public harm will often be skewed by financial incentives and lack of domain expertise.⁴⁴⁸ This kind of perspective shift is desperately needed with regard to crypto, for example, where the harms are many, the benefits few, and yet a bipartisan group of lawmakers has shown itself willing to support industry-favored deregulation designed to encourage more crypto innovation.⁴⁴⁹

This is by no means a call for fintech innovators to stand down—society often benefits from techno-optimists’ efforts to push frontiers.⁴⁵⁰ But when the stakes are high, this yin of techno-optimism needs to be balanced by the yang of contextually-informed skepticism from regulators or else history and domain expertise will be ignored and harms will proliferate unchecked. This Article has already explored why finance is an arena in which the potential harms are too significant for unfettered technological experimentation.⁴⁵¹ Finance might also be different in another respect: the potential benefits of technological innovation may prove to be structurally limited in finance. Often, with technology, it is the users who unlock truly unexpected innovative use cases through their experimentation.⁴⁵² In the financial industry, though, much of the innovation that has occurred has been driven by the supply-side, rather than consumer demand.⁴⁵³ It may be that where money is at stake, industry (including the crypto industry, which tends towards economic centralization)⁴⁵⁴ will afford users limited ability to actively construct how they receive their financial services. If this is the case, then unexpected uses of technology will have limited opportunities to emerge—and if technological experimentation is primarily benefitting the supplier rather than the users, then there is far less reason for policymakers to accommodate it.

Conclusion

Further research on how to disrupt techno-solutionism is welcome, because if fintech is to serve as a force for good in society, it needs to be severed from techno-solutionism. We need to recognize that if new technology is adopted without addressing the broader context in which it operates, then discrimination, distributional inequalities, concentrations of power, privacy incursions, and other harms will continue to proliferate. When it comes to fixing finance, technological innovation will not obviate the need for the hard slog of structural reform. Furthermore, where technological tools do have a role to play in addressing complex structural problems, they may be tarnished by “techlash” unless we can find a way to address techno-solutionism.⁴⁵⁵

Financial regulators need to adopt a posture of contextually informed skepticism instead of techno-solutionism, keeping firmly in mind that they have express statutory mandates to protect the American public from harm—and no express mandates to facilitate technological innovation. If financial regulators can resist cognitive capture and enforce existing laws such that regulatory arbitrage and regulatory entrepreneurship are not profitable strategies, then technology is more likely to deliver benefits without serious social harms. Where technologies pose genuinely new problems, then Congressional action will be needed, and that action should also proceed from a position of contextually informed skepticism. To slightly adapt testimony from AI and privacy expert Woody Hartzog, “[l]awmakers will make little progress until they accept that the toothpaste is never out of the tube when it comes to questioning and curtailing the design and deployment of [technology] for the betterment of society.”⁴⁵⁶

98 S. Cal. L. Rev. 761

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Hilary J. Allen*

* Professor of Law, American University Washington College of Law. Many thanks to Tonantzin Carmona, Julie Cohen, Jeremy Kress, Pat McCoy, Chris Odinet, Art Wilmarth, and Jeff Zhang for reading and providing feedback on earlier drafts. This paper also benefitted enormously from comments and conversations during workshops at the University of Florida, the Reserve Bank of New Zealand, the IMF’s Internal Fintech Forum, and the meeting of the Technology Section at the Academy of Legal Studies in Business Conference. Information regarding the status of technologies, regulation, and legislation is current as of October 2024, but these are used to illustrate broader themes that will remain relevant as new technologies and regulatory and legislative approaches evolve.

Fair Use and Fair Price

July 2025July 2025Roy Baharad* & Gideon Parchomovsky†

In this Article, we present and develop a new justification for the fair use doctrine. The accepted lore among copyright law scholars is that fair use is a means for overcoming a market failure in the form of high transaction costs. According to this view, the doctrine sanctions unauthorized use of copyrighted works in cases where transaction costs hinder voluntary, mutually beneficial exchanges.

Departing from conventional wisdom, we argue that the fair use doctrine serves as an important empowerment even in fully functional markets. Fair use enables users to secure more favorable licensing terms from copyright owners by endowing users with a threat point in their negotiations. Without fair use, users would have to pay the price demanded by copyright owners or not use the work. With fair use, many users can credibly assert that their intended use of copyrighted content is privileged by the fair use doctrine and thus they can use the desired content without authorization. The fair use doctrine, therefore, gives users leverage in their negotiations with copyright owners.

We illustrate our thesis by applying it to the landmark fair use decisions of the Supreme Court, including the recent ruling in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, that determined the bargaining standpoint of users for decades to come. We demonstrate the distributive effects of the Supreme Court’s fair use jurisprudence and explain how the Court must act to preserve and augment the empowering effect of fair use. The theory presented in this Article proves that the reach of fair use goes well beyond market failures and that the impact of the doctrine is much more significant than previously thought.

INTRODUCTION

Considered by many as the most important doctrine in our copyright law system,¹ fair use sanctions certain unauthorized uses of copyrighted works that would otherwise constitute a copyright infringement. Under the fair use doctrine, when a use is considered fair, the user is relieved of liability and need not pay compensation to the copyright owner whose content they used. Therefore, fair use may be conceptualized as a doctrine that confers upon deserving users a private taking power over copyrighted content that can be exercised at a zero price.²

Since its inception in the English common law and equity courts, the fair use doctrine has never ceased to fascinate theorists and students.³ The existence of the doctrine raised two critical challenges for scholars. First, under what circumstances should a use be considered fair? Second, why should fair users be fully relieved of the duty to compensate copyright owners?

The answer to both these questions has been provided by Professor Wendy Gordon. In a pathbreaking article authored almost forty years ago, Gordon conceptualized fair use as a means for overcoming a market failure in the form of high transaction costs.⁴ Gordon persuasively argued that courts should recognize fair use when three cumulative conditions obtain: first, high transaction costs prevent voluntary market exchange between copyright owners and users; second, the allegedly fair use is socially beneficial; and, third, a fair use finding would not unduly undermine incentives to create.⁵ Gordon’s key insight was that when transaction costs are prohibitive, there will be no voluntary trade between copyright owners and users. In this scenario, allowing users to use copyright content for free benefits the user without harming copyright owners, for the latter would not be able to collect payments from users as transaction costs bar voluntary exchanges. Gordon correctly submitted that under these circumstances, allowing users to use copyright content for free, by classifying their use as fair, is welfare enhancing.

By tying fair use to the level of transaction costs, Gordon, at once, provided a cogent defense of the fair use doctrine and exposed its vulnerability. Professor Tom Bell and other scholars pointed out that in an interconnected world, where technological advancements constantly lower transaction costs, there may no longer be a need for fair use, and at a minimum, courts’ willingness to recognize fair uses should diminish.⁶ Importantly, this skeptical view of fair use has not been universally endorsed by other scholars, who advanced other utilitarian and non-utilitarian justifications for fair use.⁷

In this Article, we develop a new justification for fair use that is radically different from prior theorizing. Our theory seeks to complement and reinvigorate the theories of scholars who view fair use as an essential component of our copyright system. Yet, our outlook places fair use on a very different ground from past scholarship. We contend that fair use’s most significant yet overlooked role is to facilitate bargaining between copyright owners and users, even when transaction costs are low. We argue that fair use helps users not only in those unrepresentative and rare cases where transaction costs prevent consensual transactions between copyright owners and users, but also in the more common case where transaction costs are low or nonexistent. Fair use does this by improving the bargaining power of users and giving them leverage or a threat point vis-à-vis copyright owners.

Although fair use has been traditionally considered an open-ended and unpredictable doctrine,⁸ two recent developments have infused a certain level of predictability into this area of the law. First, a close reading of fair use cases uncovers, what we call, two fair use clusters: transformative uses and uses that yield a substantive public benefit.⁹ Second, an empirical study by Professor Barton Beebe established a meaningful positive correlation between two of the statutory factors that courts are instructed to weigh in making fair use determinations—the purpose of the use and the effect of the use on the market for the copyrighted work.¹⁰ This emergence of clusters of uses or activities that have a legitimate claim for fair use is a welcome development for users, as it manifests in increased licensing leverage.

Consider transformativeness. Transformativeness covers a wide range of uses. While the level of transformativeness varies among uses, all users who engage in transformative uses of copyrighted works have a colorable fair use claim. Obviously, not all of them would win a fair use ruling in court, but each can credibly argue in negotiations with copyright owners that their use would be found fair with a certain probability. Since transformativeness, as recently established by the Supreme Court, “is a matter of degree,”¹¹ the level of transformativeness can be represented on a unit interval, essentially reflecting its probability of enjoying a fair use defense. This probability, in turn, immediately translates into licensing leverage when negotiating with a monopolistic rightsholder.

To illustrate, imagine that Anne plans to make a transformative use of a photograph in which Bob owns a copyright. Assume that there is 0.5 probability that Anne’s use would be found fair if she uses Bob’s photograph without his permission and a lawsuit ensues. Assume further that Bob typically demands $100 per license from users who wish to use his photograph. Anne, however, owing to her potential fair use claim, should be able to secure a license for $50—a price that reflects the strength of her fair use claim.

Now consider a different user, Carol, whose planned use of Bob’s work is slightly less transformative than Anne’s. The probability of Carol’s use being fair is only 0.3. Yet, all things being equal, she, too, should be able to receive a license from Bob for a lower price than his original asking price—$70, instead of $100. As we shall demonstrate throughout this Article, these examples are representative.

The same is true for a host of other transformative users—users who can claim that their derivative works bestow a significant benefit on the public, and users who appropriate only a small portion from copyrighted works. All of them have a certain individual probability of succeeding on a fair use claim when sued by the copyright owner. The license price each would be able to negotiate depends on the strength of their fair use claim, as well as on their bargaining power. But critically, each should be able to negotiate a license for a price lower than the asking price of the copyright owner. We use a formal model to demonstrate this result and identify its robustness over a wide range of scenarios. As we will show, even a small probability of obtaining a fair use ruling may well change the bargaining outcome between users and copyright owners.

The Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith decision that was recently issued by the Supreme Court provides a powerful example of our theory.¹² In this case, the Supreme Court had to determine whether fourteen unauthorized silkscreens and two unauthorized pencil drawings that were produced based on a Lynn Goldsmith photograph qualify as fair uses of the photograph.¹³ At the heart of the matter lies the definition of the term “transformativeness.” In rejecting the foundation’s fair use claim, the Court held that a transformative work must have a fundamentally different and new artistic purpose and character.¹⁴ This definition is clearly narrower than that endorsed by the Supreme Court in Campbell v. Acuff-Rose Music, Inc., according to which a transformative work is one that has a different purpose or conveys new message or meaning.¹⁵ The Supreme Court’s adherence to a rather narrow interpretation of transformativeness will carry far-reaching implications not only for the parties to the case, but also for a multitude of users who negotiate with copyright owners.

It bears emphasis that negotiation is often a prelude to litigation. In fact, many of the celebrated fair use cases, including Google LLC v. Oracle America, Inc.,¹⁶ Authors Guild, Inc. v. Google Inc.,¹⁷ and Campbell,¹⁸ were filed only after the parties tried, and failed, to negotiate a consensual agreement. Furthermore, even after a case is brought to court, the litigating parties attempt to negotiate a settlement while the case is pending. Indeed, such was the case in Oracle and Authors Guild. Naturally, not all negotiations result in a successful outcome, and some copyright disputes will inevitably end up in court. But it should be underscored that in any regular case, in which the existence of transaction costs does not hinder trade, the rightsholder-user negotiation becomes the primary apparatus for allocating use of copyrighted content; litigation is nothing but a complementary mechanism. This understanding implies that fair use theory must account for the doctrine’s impact on the negotiation process.

Our analysis shows that irrespective of its actual invocation in court, the fair use doctrine provides considerable benefits to users by improving their bargaining position. In economic parlance, the theory advanced by this Article views fair use as empowering significant categories of users by improving what negotiation theorists call the “best alternative to a negotiated agreement” (“BATNA”).¹⁹ By diminishing the BATNA of copyright holders and bolstering that of users, the fair use doctrine redesigns the licensor-licensee relationship to promote the use and distribution of copyrighted content.

The present Article thus conceptualizes fair use not as a mechanism that overcomes transaction-costs-related market failures, but rather, as a doctrine that rests the foundations for just and efficient bargaining framework. In this regard, we analyze the behavior of relevant economic actors that operate “in the shadow” of the fair use doctrine.²⁰

We develop our argument in accordance with the following structure. In Part I, we explain the fair use doctrine and discuss the theories that have been developed to justify it. In Part II, we introduce a new theory of fair use and explicate how it differs from the extant literature. In Part III, we present the normative attractiveness of our theory by highlighting its positive welfare and distributive implications. A short Conclusion ensues.

I. Fair Use: Law and Theory

A. The Fair Use Doctrine

The fair use doctrine made its first appearance in the U.S. in the 1841 case of Folsom v. Marsh.²¹ According to scholars, however, its origins are far more ancient. Professor Matthew Sag, for example, suggests that the fair use doctrine “predate[d] Folsom v. Marsh by at least 100 years.”²² Professor William Patry went even further and dated the doctrine back to the year 1710 when the Statute of Anne was enacted.²³ Other researchers trace the roots of the fair use doctrine to the common law and natural rights conceptions.²⁴

In 1976, the fair use doctrine was codified and became part of the Copyright Act. 17 U.S.C. § 107 (“section 107”), in which the fair use doctrine is enshrined, opens with a preamble that offers a non-exhaustive list of presumptively fair uses, including, “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”²⁵ Then, it proceeds to enumerate four factors that courts ought to consider when making fair use determinations: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; [and] (4) the effect of the use upon the potential market for or value of the copyrighted work.”²⁶

It is important to note that the codification of the fair use doctrine did not purport to change its nature as an equitable doctrine. In the accompanying House Report, Congress referred to the fair use doctrine as “an equitable rule of reason.”²⁷ The statutory formulation of the doctrine, therefore, preserved the flexibility and open-endedness that have become the hallmark of the fair use doctrine. As Judge Pierre Leval wrote in his 1990 classic article on fair use:

What is most curious about this doctrine is that neither the decisions that have applied it for nearly 300 years, nor its eventual statutory formulation, undertook to define or explain its contours or objectives. . . . [They] furnish little guidance on how to recognize fair use. The statute, for example, directs us to examine the “purpose and character” of the secondary use as well as “the nature of the copyrighted work.”²⁸

Even more remarkable was Judge Leval’s admission that although “courts have treated the definition of the doctrine as assumed common ground[, t]he assumption of common ground is mistaken. Judges do not dineshare a consensus on the meaning of fair use.”²⁹ Indeed, the courts’ inability to converge on a common understanding of fair use has frustrated copyright scholars, leading Professor Larry Lessig to conclude that the fair use doctrine amounts to nothing other than “the right to hire a lawyer to defend your right to create.”³⁰

While scholars have bemoaned the uncertainty that shrouds the fair use doctrine³¹ and, over the years, have advanced various proposals in order to cabin the unpredictability of fair use,³² in this Article, we take a different tack. We argue, contrary to conventional wisdom, that the inherent uncertainty of the fair use doctrine might actually help, rather than harm, users. The possibly virtuous effect of uncertainty has been overlooked by theorists as they have focused exclusively on the litigation arena. We, by contrast, are interested in the effect of fair use outside of the courtroom, in negotiations between copyright owners and users. We develop this argument fully in Part II of this Article, as part of our transactional model of fair use. But before elaborating on the potential virtues of uncertainty, it behooves us to complete our discussion of the development of the fair use doctrine and highlight some critical recent developments.

Four years after Judge Leval’s 1990 portrayal of fair use as a helplessly underminable doctrine, the fair use landscape was reshaped. The turning point was the Supreme Court’s 1994 decision in Campbell v. Acuff-Rose Music, Inc.. In finding 2 Live Crew’s version of Roy Orbison’s and Bill Dees’s copyrighted song “Oh Pretty Woman” a fair use, the Court stated that “the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.”³³ As we will show, lower courts were quick to follow the language and spirit of the Campbell opinion. Since Campbell, transformativeness has become the currency of the fair use realm.³⁴

The importance of transformativeness to fair use determinations was highlighted by Judge Leval in his classic article.³⁵ Yet, it was the Supreme Court’s endorsement of transformativeness in Campbell that officially conferred upon it an elevated status.³⁶ Subsequent cases have substantially increased the weight granted to transformativeness in fair use determinations. Among others, courts held that a challenged work is worthy of protection whenever it “contains significant transformative elements,”³⁷ is “sufficiently transformative,”³⁸ or is endowed with a “patently transformative character.”³⁹ It has been further emphasized that a central purpose of fair use investigations is to establish “whether and to what extent the new work is ‘transformative.’ ”⁴⁰ In other instances, courts submitted that copyright infringement, notwithstanding the commercial character of the work in question, may not be determined given that the original work is “used for a transformative purpose.”⁴¹

The effect of the rise of transformativeness can be best seen in the context of fair use cases involving appropriation art. Appropriation art is an art form predicated on the use of existing objects with subtle modifications.⁴² Cases on appropriation art include the Second Circuit’s famous Blanch v. Koons⁴³ and Cariou v. Prince.⁴⁴ In both cases, the court was persuaded of the sufficient transformation that the process of appropriation can embed. In Blanch, the court explained that Jeff Koons’s appropriation of Blanch’s photograph “was intended to be—and appears to be—‘transformative.’ ”⁴⁵ In Cariou, the court was more hesitant but nonetheless concluded that Richard Prince’s appropriating work “could be transformative even without commenting on Cariou’s work or on culture, and even without Prince’s stated intention to do so.”⁴⁶

A closely related development in fair use jurisprudence that can also be traced back to Campbell involves parodies. A parody is defined as a derivative work whose purpose is to criticize or comment on a preexisting copyrighted work.⁴⁷ After classifying 2 Live Crew’s unauthorized rendition of “Oh Pretty Woman” as a parody, the Court likewise ruled that parodic uses are especially transformative and therefore have an especially strong claim for fair use.⁴⁸ The Court added that copyright owners are unlikely to authorize parodies that are of unflattering commentary or mockery to their works,⁴⁹ and thus, the production of parodies critically depends on fair use.

The Supreme Court’s ruling in Campbell has been understood by lower courts and commentators to create something of a safe harbor for parodies.⁵⁰ As Professor Pamela Samuelson observed, “[n]otwithstanding the Court’s unwillingness in Campbell to presume that parodies are fair, every subsequent parody case has been adjudged a fair use.”⁵¹ For example, in Suntrust Bank v. Houghton Mifflin Co., the Eleventh Circuit ruled that Alice Randall’s “The Wind Done Gone,” a critical literary account of Margaret Mitchell’s “Gone With the Wind,” was a parody of the original and was therefore a fair use of it.⁵² Likewise, in Burnett v. Twentieth Century Fox Film Corp., the Court ruled that an audiovisual work produced by the creators of Family Guy, which poked fun at the figure of Carol Burnett, constituted a fair use on account of its parodic nature.⁵³ Similarly, in Brownmark Films, LLC v. Comedy Partners, the Seventh Circuit held that a music video by the creators of South Park which parodied the plaintiff’s music video has “obvious transformative value.”⁵⁴ Recently, the Second Circuit openly acknowledged that in the aftermath of Campbell, “parody, which ‘needs to mimic an original to make its point,’ . . . is routinely held transformative.”⁵⁵

Another line of cases, beginning with Kelly v. Arriba Soft Corp.,⁵⁶ highlighted another key determinant of fair use: social benefit. Importantly, this category, too, grew out of the Supreme Court’s Campbell decision, with its emphasis on transformativeness. In Campbell, the Court suggested that a “parody has an obvious claim to transformative value” because “it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one.”⁵⁷ The fair use cases that thrust public benefit to the forefront of the fair use analysis predominantly involved users from the technology sector. In Kelly, the Ninth Circuit ruled that the public display of photographs in the form of thumbnails as part of the operation of a visual search engine constituted fair use.⁵⁸ In reaching this conclusion, the court mentioned the benefit conferred on the public by the appellee’s search engine.⁵⁹ Approximately four years later, in 2007, in Perfect 10, Inc. v. Amazon.com, Inc., the Ninth Circuit was asked to revisit the issue, when an adult content company sued Google, alleging that its authorized display of its copyrighted photos as thumbnails in response to users’ searches constituted copyright infringement.⁶⁰ Finding that Google’s use was fair, the Ninth Circuit emphasized the “significant public benefit” of Google’s search system, explaining:

[A] search engine provides social benefit by incorporating an original work into a new work, namely, an electronic reference tool. Indeed, a search engine may be more transformative than a parody because a search engine provides an entirely new use for the original work, while a parody typically has the same entertainment purpose as the original work.⁶¹

The social benefit factor quickly found its way to the decisions of other circuits.⁶² It played an important role in the Second Circuit’s ruling in Authors Guild v. Google, Inc..⁶³ The case was brought after Google decided to establish a large, searchable digital repository of literary works by scanning the books in several libraries around the world, including the libraries of Harvard University, The University of California, Stanford University, The University of Michigan, Columbia University, Princeton University and the New York Public Library.⁶⁴ The goal was to allow users to search the content of the books, yet the content of books could not be copied and only snippets from books were displayed to users in response to their searches.⁶⁵ Nonetheless, after prolonged negotiations between the parties failed to yield a settlement, the Authors Guild sued Google for copious copyright infringements.⁶⁶ In reaching the conclusion that Google’s use was fair, the district court dedicated a full section of its decision to a discussion of the myriad public benefits arising from Google’s use.⁶⁷ On appeal, the Second Circuit affirmed the district court’s decision, awarding Google an important legal victory, but toned down the importance of the public benefits provided by Google.⁶⁸

The final imprimatur of public benefit as a key determinant of fair use was given by the Supreme Court in its 2021 decision in Google LLC v. Oracle America, Inc.⁶⁹ In a 6-2 decision, the Supreme Court ruled that Google’s unauthorized appropriation of 11,500 lines of Oracle’s Java Application Programming Interface (“API”) for the Android operating system constitutes fair use.⁷⁰ Writing for the majority, Justice Breyer noted the added value created by Google’s use for third parties:

Here Google’s use of the Sun Java API seeks to create new products. It seeks to expand the use and usefulness of Android-based smartphones. Its new product offers programmers a highly creative and innovative tool for a smartphone environment. To the extent that Google used parts of the Sun Java API to create a new platform that could be readily used by programmers, its use was consistent with that creative “progress” that is the basic constitutional objective of copyright itself.⁷¹

Importantly, it was not only the courts that helped dispel some of the doctrinal mist that enveloped the fair use doctrine for centuries. Academics, too, have managed to point to overarching principles that affect fair use determinations. Two such efforts are worthy of special note.

In two separate projects, the first published in 2008⁷² and the second in 2020,⁷³ Professor Barton Beebe empirically examined fair use case law to find correlations between various fair use factors and case results. His method allowed him to pierce the judicial rhetoric and examine which statutory factors are outcome determinative in fair use cases. In his 2008 article, which surveyed the opinions from all fair use cases issued between 1978 and 2005, Beebe noted that “[i]t appears . . . that courts and commentators have exaggerated the influence of transformativeness doctrine on our fair use case law.”⁷⁴ However, in his 2020 article that analyzed the opinions from all fair use cases issued between 2005 and 2019, Beebe reports that “while the transformativeness test appeared to be waning in influence by 2005, it has since recovered its previous level of influence, even in the lower-profile, workaday fair use opinions that make up the majority of the data.”⁷⁵ Along similar lines, Clark Asay, Arielle Sloan and Dean Sobczak have empirically established that if courts perceive a certain use as transformative, it would almost invariably qualify for fair use protection, which implies that transformativeness is essentially a sufficient condition for enjoying the fair use defense.⁷⁶ These recent findings suggest an important confluence between judicial rhetoric and reality.

The Supreme Court’s recent decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith⁷⁷ unfolded the most recent development in fair use jurisprudence. Issued in May 2023, the ruling is the first application of fair use in the arts and entertainment industry since the 1994 Campbell ruling. The Warhol case involves a series of Prince’s photos taken by photographer Lynn Goldsmith in 1981 to accompany a Vanity Fair article concerning Prince.⁷⁸ Unbeknownst to Goldsmith, the magazine solicited Andy Warhol to create a stylized painted version of the photograph that became known as the “Orange Prince” silkscreen.⁷⁹ Vanity Fair published the Orange Prince portrait in its November 1984 edition, and Goldsmith was co-credited for this work.⁸⁰ Orange Prince, however, was only one of sixteen painted versions created by Warhol, collectively known as Warhol’s “Prince Series.”⁸¹ Pursuant to its completion, the Prince Series has been routinely displayed in museums and galleries.⁸² After Prince’s passing in 2016, Condé Nast, the official publisher of Vanity Fair, published a commemorative magazine entitled “The Genius of Prince,” with the Orange Prince portrait embellishing its cover.⁸³ Alleging copyright infringement, Goldsmith argued that notwithstanding her initial 1984 licensing agreement with Condé Nast to use her photo one time as an “artistic reference,” she was unaware of the Orange Prince silkscreen—as well as of the Prince Series at large—until its reintroduction as part of the commemorative 2016 edition.⁸⁴

Once Goldsmith learned of the aforementioned facts, she brought an infringement suit against the foundation. The Southern District of New York granted the foundation’s motion for a preliminary ruling that Warhol’s work, though it incorporated Goldsmith’s photograph, was sufficiently transformative to qualify as a fair use.⁸⁵ The ruling was then overturned by the Second Circuit.⁸⁶ Finding that Warhol’s portrait incorporated no significant addition or alteration upon Goldsmith’s original photograph, the court concluded that the portrait was infringing.⁸⁷ In a 7-2 decision, the Supreme Court elected to affirm the Second Circuit’s conservative interpretation of transformativeness, thus rejecting the appeal and siding with Goldsmith.⁸⁸ The Warhol case thus marks a potential deviation from status quo interpretation of the fair use doctrine. We analyze the implications of the rulings to our theory in Part II, below.

The preceding discussion teaches that the Supreme Court’s approach to fair use has interjected a certain degree of certainty and predictability into the doctrine. This is not to say that fair use has become a clear doctrine—far from it—but it can be generally stated that in the aftermath of Campbell, parodic uses, sufficiently transformative uses, and uses that produce significant public benefits are likely to be found fair. As we will explain in Part II, the creation of these fair use clusters, or silos, is of vital importance to our theory of fair use. But before introducing our own theory of fair use, we must give credit to prior theorists and discuss their contributions. It is to this task that we next turn.

B. Theoretical Justifications of the Fair Use Doctrine

As befits a doctrine of its significance, scholars have advanced several theories to justify fair use. In this Section, we review the leading theoretical justifications of fair use. It should be emphasized at the outset that our goal is not to discredit other theories or even criticize them. As we will show, our theory of fair use complements existing theories by elucidating a central function of fair use that has hitherto evaded other scholars. The goal of the proceeding discussion is twofold: first, we wish to map the theoretical landscape of fair use, so we can precisely locate our own theory within it. Second, we seek to show how our justification of fair use interacts with the extant theoretic literature.

The most dominant theory has been put forth by Wendy Gordon.⁸⁹ In an immensely influential article, Gordon argued that the fair use doctrine is a mechanism for allowing the use of copyrighted content when voluntary transactions between copyright owners and users are barred by high transaction costs.⁹⁰ Specifically, Gordon postulated that fair use should be recognized when three cumulative conditions are met: (1) high transaction costs prevent consensual bargaining between copyright owners and users; (2) the unauthorized use is socially desirable; and (3) legitimizing the disputed use would not undermine incentives to create.⁹¹

To illustrate the operation of Gordon’s theory, imagine a student who wishes to quote a copyrighted manuscript. Assume that the author of the manuscript charges $20 for the requested use and that is also the maximum price that the student is willing to pay. However, transaction costs—defined as the cost of identifying the counterparty to the transaction, negotiating and formalizing an agreement with them, and enforcing the agreement—would bar the exchange from taking place. Under these circumstances, allowing the student to quote the manuscript without permission would make them (and society at large) better off without harming the author. The author, in our example, could not receive payment from the student, not because they refused to pay, but rather owing to the fact that the level of transaction costs made payment impossible. Hence, the author stands to lose nothing if the student’s use is considered fair and the student receives a benefit of $20. Society, too, is benefitted by the award of fair use to the student since the realm of creativity is enriched, while incentives to create future works are not harmed.

Gordon’s approach grounded fair use in economic theory, proving that the doctrine can be welfare enhancing when applied properly. However, the tie Gordon created between fair use and high transaction costs has proven to be a double-edged sword. As the title of her article, Fair Use as a Market Failure suggests, Gordon justified fair use as a means of overcoming a market failure in the form of high transaction costs. This was a great strength of Gordon’s theory, but also a potential weakness. Critically, Gordon’s theory established a direct correlation between the level of transaction costs and the cases in which fair use should be recognized. The problem is that improvements in telecommunications and computer technologies have dramatically lowered transaction costs since Gordon published her article in 1982, putting a lot of strain on Gordon’s theory. Critics of Gordon’s theory suggested that in an interconnected world, fair use has outlived its “raison d’être” and all uses must be secured via payment.⁹² It bears emphasis that Gordon responded to her critics by broadening and sharpening the role of market failure in her account. Yet, Gordon’s account remains inextricably related to the concept of market failure, and it conceives fair use as a mechanism that operates in non-transactional settings, i.e., settings in which voluntary transactions are vitiated.⁹³

A slightly different justification of fair use that complements Gordon’s original justification has been offered by Ben Depoorter and Francesco Parisi. Depoorter and Parisi correctly pointed out that technological advancements do not lower all transaction costs.⁹⁴ The problem of strategic holdouts remains, even in the face of technological advancements. The holdout problem is especially acute for users, such as creators of documentary works, who need to secure permission from multiple copyright owners. In such cases, each copyright owner possesses veto power over the planned use and may strategically exercise it to the detriment of users. The fair use doctrine allows users to carry out their creative projects despite strategic attempts by copyright owners to hamper the enterprise.⁹⁵ Depoorter’s and Parisi’s account is both persuasive and elegant, but “it potentially limits the usefulness of the market-failure theory to only cases in which a user must clear multiple rights and has no other alternatives.”⁹⁶

Two additional justifications of fair use focus on allocative efficiency. The first, associated with William Fisher, calls on courts to use fair use to promote the goals of copyright protections.⁹⁷ To this end, Fisher asks courts to think of all possible uses of copyrighted works. Then, for each use, he calls on courts to design what can be called an “efficiency ratio,” with the numerator representing the profit an author could realize if fair use is denied and the denominator representing the loss to society if the copyright owner refuses to license the work.⁹⁸ A high efficiency ratio suggests, per Fisher, that the use is probably unfair, while a low one indicates that the use is fair.⁹⁹ Fisher sets the cutoff at the use with the highest marginal aggregate social gain (gain to society from creation minus loss to society from monopoly control over uses).¹⁰⁰ As Fisher himself admits, his approach to analyzing fair use, at least with respect to some sorts of works, “is nearly coterminus [sic] with economic analysis of the copyright system as a whole.”¹⁰¹ Fisher likewise acknowledges that his approach is probably impractical in light of the informational burden it imposes on judges.¹⁰²

A different allocative justification, termed the “dual-grant theory” of fair use, was constructed by Professor Abraham Bell together with one of this article’s authors.¹⁰³ The dual-grant theory maintains that in designing our copyright system, Congress created two blocs of uses, allocating one to authors and the other to the public. Each group was given the uses which it values most. Accordingly, authors received “standard commercial uses,” while the public received “uses of highly dispersed social value,”¹⁰⁴ such as political speech, and uses that promote the pursuit of science, knowledge and truth.¹⁰⁵ By contrast to Fisher’s theory of fair use, which requires courts to make individual case-by-case determinations of fair use, the dual-grant theory calls on courts to make fair use determinations based on the category of uses to which the challenged use belongs. This, in turn, renders the approach a lot more practical but less precise compared to Fisher’s framework of analysis.

II. Fair Use as Licensing Leverage

As our discussion in Part I demonstrates, extant theories of fair use perceive it as a mechanism for bypassing the market and a substitute to owner-user bargaining. Importantly for the purpose of our analysis, all existing justifications of fair use focus exclusively on the courts. The underlying assumption in all four accounts is that fair use serves users exclusively in litigation or as a tool for overcoming negotiation breakdowns or high transaction costs that prevent negotiations from occurring ab initio.

The justification we develop in this Part focuses on the effect of fair use on enabling voluntary transactions between copyright owners and users. By contrast to prior justifications of fair use, we show that the main function of fair use is to facilitate bargaining, rather than replace it. We call this effect “the hidden function of fair use.” As we demonstrate, the fair use doctrine allows users to secure more favorable licensing terms from copyright owners. Importantly, our theory does not compete with any of the prior theories. Rather, it complements all four of them. This complementarity suggests that the effect of fair use is broader and deeper than previously believed.

A. The Theory

In their acclaimed bestseller on negotiation theory, Getting to Yes, Professors Roger Fisher and William Ury famously stress that “the relative negotiating power of two parties depends primarily upon how attractive to each is the option of not reaching agreement.”¹⁰⁶ They therefore submit that a sine qua non¹⁰⁷ for A’s bargaining advantage is that their benefit from a state of disagreement exceeds B’s, since, in such case, B would be willing to sacrifice more in order to reach an agreement, which diverts the terms of agreement formation in A’s favor. Normally, the party with the upper hand in a bargaining setting is the one who possesses a stronger BATNA.¹⁰⁸ To exemplify, suppose that A is interested in selling B a used car, which B values at $10,000. Realizing this, A can require up to $10,000 to secure an agreement between the two. Assume now that C offers a similar car for sale, in exchange for only $5,000. C’s entry affects the negotiations between A and B: the maximum price that B would be willing to pay for A’s car now drops to $5,000. C’s entry, by providing B with an alternative to negotiating with A, enhances B’s BATNA.

The fair use doctrine has a similar effect to that of C’s entry in the previous example: it elevates users’ BATNA and thereby confers upon them significant leverage in negotiations with copyright owners. A helpful way to see this effect of fair use is to think of it as a call option the law gives to users over copyrighted content with a strike price of zero if their use is found fair. Recall that a fair use finding means that a user is not only free to use copyrighted content without permission, but also that they are allowed to do so free of charge.

To illustrate, suppose that Ella, an artist, is interested in using Francine’s copyrighted work for a transformative purpose and contacts her to acquire authorization. Assume that Ella values Francine’s work at $8,000 and is willing to pay Francine up to this sum in order to secure authorization. If Ella were to use Francine’s work without permission, she would be sued for copyright infringement and a court would order her to pay Francine $10,000 in damages.¹⁰⁹

To see the effect of fair use on negotiation dynamics, consider first a world without fair use. In this world, users can only use copyrighted content permissively. Any attempt at bypassing the market would be remedied by damages, an injunction, or both. Under a legal regime that does not recognize fair uses, Ella has no feasible alternative to negotiating with Francine. Using the work without authorization is not a viable option from Ella’s perspective, as it represents a negative net value (-$2,000): while Ella would receive a benefit of $8,000 from her use, she ought to pay $10,000 in damages. Therefore, in economic parlance, Ella has no credible threat of using without authorization: both parties know that if negotiations fail, Ella will just have to forgo her planned use. Consequently, Ella is willing to pay any price up to $8,000 (her valuation of Francine’s work), eliciting a positive benefit, instead of zero. Francine, in turn, would take advantage of her monopolistic status as an exclusive rightsholder and accord by setting up an asking price of $8,000—the maximum Ella is willing to pay.¹¹⁰ In such a world, therefore, Ella confronts an asking price of $8,000, which means that Francine gets to pocket the entire bargaining surplus.

Now consider a world with fair use. Assume that, given the high transformativeness of Ella’s intended use, there is a 0.5 probability that a court will find the use fair. This means that if negotiations fail, Ella is better off using Francine’s work without authorization than with forgoing the use: using the work without permission provides her with a benefit of $8,000 while the expected costs are only $5,000 (0.5 × $10,000 = $5,000). Critically, the introduction of fair use changes the expected value of unauthorized use from -$2,000 to $3,000 ($8,000 – $5,000). The existence of the fair use doctrine, thus, dramatically empowers users vis-à-vis copyright owners. This implies that Ella’s threat of using Francine’s work without permission becomes credible: if Francine’s asking price would exceed $5,000, Ella would walk off the negotiation table and use the work without authorization. This is because any asking price that crosses this threshold makes her benefit from authorization less than $3,000, which should lead her to refuse to pay this amount and, instead, use the work without authorization. In such a world, therefore, Ella confronts an asking price of $5,000.¹¹¹ We summarize the results of our examples in Table 1, below.

Table 1. The Effect of Fair Use on Users’ Licensing Leverage
World	Ella’s Benefit from Using	Expected Cost of Unauthorized Use	Expected Value of Unauthorized Use	Ella’s Value of Not Using	Ella’s BATNA	Francine’s Asking Price
Without Fair Use	$8,000	$10,000	-$2,000	0	Non-existent	$8,000
With Fair Use	$8,000	$5,000	$3,000	0	Increased	$5,000

Assume next that Ella’s desired use is not only highly transformative, but a clear parody, thus representing a 0.8 probability of a fair use finding by a court. In that case, there is only a 0.2 probability that a court will find Ella liable for copyright infringement and award Francine damages. This, in turn, renders the expected value of unauthorized use for Ella even higher: $8,000 – 0.2 × $10,000 = $6,000. In light of this fact, Ella will never accept any asking price that surpasses $2,000. Realizing this, Francine would agree to license the work to Ella for $2,000. The results are summarized in Table 2.

Table 2. The Effect of Increased Fair Use on Users’ Licensing Leverage
World	Ella’s Benefit from Using	Expected Cost of Unauthorized Use	Expected Value of Unauthorized Use	Ella’s Value of Not Using	Ella’s BATNA	Francine’s Asking Price
With Increased Fair Use Probability	$8,000	$2,000	$6,000	0	Further increased	$2,000

The logic that underlies this finding is as follows. When facing a copyrighted work, any user entertains a trichotomous choice: (1) they may pay a licensing fee and use the work unhinderedly; (2) they may avoid using it altogether; or (3) they may refrain from licensing, use the work without acquiring authorization, and face the expected costs of a copyright infringement lawsuit. Users’ BATNA essentially depends on the feasibility of the third alternative. Herein lies the significance of fair use. Fair use bestows upon users the power to credibly threat to use copyrighted content without authorization and thereby leads rightsholders to adjust their asking price downwards. A world without fair use, by contrast, would allow any rightsholder to prevail in an infringement suit against any unauthorized user, which obviates the user’s third alternative. In such a world, users are left with options (1) and (2): they can either pay copyright owners the licensing fees they post or refrain from using the work altogether.

The fair use doctrine not only engenders alternative (3) but also makes it viable. As in the example discussed above, knowing that Ella reaps a positive expected value of $3,000 from unauthorized use, Francine realizes that for any asking price that exceeds $5,000 (leaving Ella with a benefit of less than $3,000), Ella has a credible threat of not taking the deal and using the work without permission.

B. The Model

Our theory can be generalized in a simple formal fashion. Let v denote a given user’s valuation of a given copyrighted work. Let A denote the owner’s asking price. A is the maximum licensing fee that the user finds attractive, i.e., the maximum price under which the user does not have a credible threat to engage in unauthorized use as a substitute for acquiring authorization. Denote by p the probability that a court will find that the user’s unauthorized use is protected by the fair use doctrine, and denote by D the damages the court is expected to award the rightsholder if fair use protection is not granted.

The owner’s asking price is given either by the user’s valuation of the work, v, or, if the user obtains a positive expected value from an unauthorized use (namely, if v – (1 –p)D > 0), by deducting this sum from v:

Note that in a world without fair use, p = 0. This means that if v < D, namely, as long as the court is expected to award damages that exceed the user’s valuation of the copyrighted work, unauthorized use is never a worthwhile alternative to licensing. The user thus possesses no leverage vis-à-vis the owner, and the latter will therefore require payment of v, the user’s valuation of the work, in order to grant authorization.

The fair use doctrine invariably increases the expected value of unauthorized use: raising the value of p from p = 0 to p > 0, which results in a higher p – (1 –p)D. Furthermore, for some threshold values of and , it increases v – (1 –p)Dto satisfy v – (1 –p)D > 0, and in such case, the existence of the fair use doctrine results in positive expected value from unauthorized use. From the user’s perspective, this means that v > (v – (1 –p)D), and thus A, their negotiated authorization price, decreases. Figure 1 exemplifies the relationship between A, the asking price, and p, the probability of fair use, for given values of v and D that uphold D > v.

Figure 1. The Effect of Fair Use on Copyright Pricing

This stylized model unfolds the technical bargaining mechanism that underlies our theory. Thus far, the accepted lore perceived fair use as offering users an effective bypass from licensing negotiations—but this statement can be confidently made only when fair use is granted with certainty (p = 1), which is hardly the regular case. The model emphasizes that even under the conventional setting where a fair use ruling is uncertain, the doctrine plays a critical role in the market for copyrighted content—the uncertainty translates into decreased asking price by monopolistic rightsholders, hence advantaging users’ bargaining standpoint.

We now turn to introduce evidence from licensing practices that supports our theory, and then we discuss the normative implications.

C. Illustrations

Our theoretical exposition of the hidden function of fair use finds support in real world cases. In this Section, we provide various examples that substantiate our theoretical predictions. These cases show that users are aware of the bargaining leverage they can get from the fair use doctrine and take advantage of its more favorable licensing terms.

Oracle and the Future of Licensing in Technologies

As noted, our theory likewise applies to providers of technological applications that generate a benefit to the public. A case in point can be found in Justice Thomas’s dissenting opinion in Google LLC v. Oracle America, Inc..¹¹² In support of his view that Google’s use of Oracle’s code was not fair, he noted that Google’s use created a reality where “device manufacturers no longer saw much reason to pay to embed the Java platform.”¹¹³ Justice Thomas proceeded to emphasize that:

[B]efore Google released Android, Amazon paid for a license to embed the Java platform in Kindle devices. But after Google released Android, Amazon used the cost-free availability of Android to negotiate a 97.5% discount on its license fee with Oracle. Evidence at trial similarly showed that right after Google released Android, Samsung’s contract with Oracle dropped from $40 million to about $1 million.¹¹⁴

The sharp decline in Oracle’s revenues from licensing its Java code provides a powerful illustration of the impact of fair use on market transactions. As the figures show, the bargaining leverage of Oracle in all of its licensing transactions critically depended on the licensees’ assessment of the strength of Google’s actual fair use claim and their own hypothetical fair use claims. For although Google was at the forefront of this legal battle, many other technology companies were similarly situated to Google insofar as their status as fair users.¹¹⁵ As the sentiment that Google would prevail gained purchase among technology companies, the revenues of Oracle sharply decreased, precisely as our theory predicts.

In analyzing the Supreme Court’s decision, commentators have noted that “[i]n the future, this decision may prompt more disrupters to use fair use as a shield in releasing new products or services that build off of older functional technologies, or otherwise influence negotiations as some potential licensees may find the value of certain functional code to be devalued by the Oracle.”¹¹⁶

Documentary Filmmakers

Copyright scholars tend to refer to the documentary filmmakers’ population as a primary beneficiary of fair use. Documentary filmmakers must incorporate prior works, many of which are subject to copyright protection. Hence, the fair use doctrine is critical to the operation of the industry. It may come as no surprise, therefore, that documentary filmmakers are cognizant of their ability to leverage on fair use in negotiations with copyright owners. A 2020 study by the Center for Media and Social Impact (“CMSI”) concerning the state of the documentary field¹¹⁷ indicates that 76% of all participating U.S. documentary directors and producers have utilized or leveraged the fair use doctrine in the making of their most recent film.¹¹⁸ This corresponds to other surveys, wherein 70% of the filmmakers have rated their understanding of fair use as “good or excellent,”¹¹⁹ while 73% of those with more than a decade of experience found fair use a “very useful” doctrine.¹²⁰ Likewise, an elaborate manual published by the Archive Valley company, which provides archival services for documentarists, introduces the underlying strands of fair use by explaining to authors that “if you meet the fair use guidelines . . . you can use footage for free,” but complements this straightforward statement by informing authors that “[e]ven if you know that you do want to license footage, knowing your rights about fair use can put you in a stronger negotiating position.”¹²¹

Finally, it seems that the leverage fair use bestows upon filmmakers changes the boundaries of the bilateral owner-user bargaining. Crucially, a strong fair use claim appears to pave authors’ way to efficiently negotiate with relevant third parties, too. In this regard, 95% of filmmakers have reported to persuade broadcasters regarding the applicability of fair use to their case when equipped with a lawyer’s letter.¹²² 99% responded identically when asked about negotiations with insurers.¹²³ This means that fair use not only leverages users when bargaining with rightsholders, but, as importantly, alleviates the entire chain of negotiations necessary for pursuing one’s artistic vision.

Parodies and Satires

The story of the musician “Weird Al” Yankovic, who is known for his humoristic commercial adaptations of popular music, provides yet another real-world example of the effect of ambiguity on broadening the population of users that can enjoy increased licensing leverage in light of fair use. Whether Yankovic’s spoof songs are in fact parodies¹²⁴ or satires¹²⁵ is a controversy that has never been, and probably never will be, settled, as Yankovic always acquires authorization from the owners of the rights to the original songs¹²⁶—be it because of industry norms¹²⁷ or in order to be on the “safe side” of copyright law. Interestingly, however, Yankovic’s practice has been described as “[l]icensing [w]ith [l]everage.”¹²⁸

Yankovic, whose parodic use adjoins satire, bargains for authorization under a fairly reasonable possibility of fair use protection. And Yankovic is not alone. Other artists who produce adaptations of copyrighted works have the same leverage that he does: they possess a colorable fair use claim.

It should be underscored that this broadening effect is not limited to musical adaptations. Rather, it applies to copyrighted subject matter categories, from videoclips to literary works. As importantly, the effect is not confined to adaptations that straddle the line separating parodies and satires. In the case of transformative uses, the effect is much broader. Consider, for example, the case of Gregg Gillis, better known as the popular D.J. Girl Talk, whose foremost artistic contribution has been described as “mak[ing] danceable musical collages out of short clips from other people’s songs.”¹²⁹ Gillis insists that his sampling work is protected by the fair use doctrine, and therefore, as opposed to Yankovic, he consistently refuses to solicit authorization from rightsholders to the original works.¹³⁰ Markedly, while many have accused Gillis of infringing upon their exclusive rights, a lawsuit has yet to be filed.¹³¹ In short, thus, it appears that both Gillis and his accusers believe that the musician enjoys a solid case, garnering a sufficiently high fair use probability that in turn nullifies the credibility of threats to sue. This translates into a reservation price of zero.

Warhol and the Future of Transformativeness

Another exemplification of the utilization of the transformativeness threshold into licensing leverage can be driven from Cariou v. Prince, in which the Second Circuit defined transformativeness as any alteration of the original’s “expression, meaning, or message,” finding that even appropriation art can be considered fair use.¹³² Under this expansive definition of fair use, any user who adapts a work can raise a fair use defense. Obviously, not every adaptation would be ruled fair. Similarly, not every appropriation artist will meet the same faith as Richard Prince. But every transformative user has bargaining leverage thanks to this broad definition.

As noted, however, the Supreme Court’s recent decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith diverges from preceding rulings on transformativeness that advantaged users, and it seems to reallocate bargaining power between users and rightsholders.¹³³ Owing to Warhol, we might confront a shift toward a new era that introduces a new equilibrium in the market for copyrighted content.

Notwithstanding their absence from both popular discourse and academic scholarship on fair use, the Justices—both members of the majority and dissenters—were far from oblivious to this outcome. First, this understanding manifests in Justice Sotomayor’s articulation of the majority opinion. Justice Sotomayor first warns us that the broad interpretation of transformativeness would favor users with utterly disproportionate leverage over the original rightsholder. Upon recognizing that transformativeness “is a matter of degree,”¹³⁴ Justice Sotomayor maintains that:

[Holding for the Plaintiff] would potentially authorize a range of commercial copying of photographs, to be used for purposes that are substantially the same as those of the originals. As long as the user somehow portrays the subject of the photograph differently, he could make modest alterations to the original . . . and claim transformative use.¹³⁵

Justice Sotomayor’s words implicitly capture our theory, acknowledging the simple fact that the degree of transformativeness that suffices for the Court to bestow a fair use defense would shape market interactions between owners and users. Determining that changes reminiscent to those made by Andy Warhol are not significant enough to meet this threshold, particularly when the use is of commercial nature, Justice Sotomayor precludes users from leveraging a fair use claim and consequently—when viewed via an economic lens—submitting that their intended use does not deserve a reduced licensing fee.

More explicit are the statements made in Justice Kagan’s dissenting opinion. Justice Kagan distinctly highlights the pivotal role of the Supreme Court in allocating bargaining surplus between owners and users, noting that by refusing to side with Warhol’s deeds, the Court would frustrate users’ ability to license under favorable terms:

Still more troubling are the consequences of today’s ruling for other artists. If Warhol does not get credit for transformative copying, who will? And when artists less famous than Warhol cannot benefit from fair use, it will matter even more. . . . [A]s our precedents show, licensors sometimes place stringent limits on follow-on uses, especially to prevent kinds of expression they disapprove. And licensors may charge fees that prevent many or most artists from gaining access to original works.¹³⁶

The transactional role of the fair use doctrine and its effect on licensing negotiations has been properly identified and adequately considered. Despite that, the Court has upset the longstanding understanding of market actors, potentially requiring the market to form a new equilibrium that is less favorable to users. This leads us to conclude that the reallocation of bargaining power that we expect to witness in the near future—together with the inevitable increase of copyright pricing—is the Court’s fully conscious decision, rather than an unforeseen economic side effect.

III. Normative Implications

In this Part, we explain how the licensing leverage created by fair use ameliorates the efficiency losses and inequities associated with copyright protection. In particular, we demonstrate the doctrine’s ability to increase the number of voluntary transactions between copyright owners and users and to redistribute wealth from rightsholders to users.

A. Countervailing Allocative Inefficiencies

Being quintessential public goods, intellectual works cannot be supplied efficiently by the free market.¹³⁷ In the absence of a legal prohibition on copying, users would be able to copy expressive works with impunity. In such a world, the market price of copyrighted works would rapidly drop to zero, and so would the incentives to create and supply intellectual goods. Unable to recoup their initial investment in the creation of original content, authors may well decide to put their creative skills to rest. The need to maintain authors’ incentives to create warrants legal intervention that would grant them exclusive control over the distribution of their works.¹³⁸

Yet, the legal exclusivity copyright law bestows upon authors creates several costs. Chief among them is monopolistic pricing.¹³⁹ Two major effects are customarily attributed to monopolistic pricing: allocative inefficiency and distributional inequity.

The allocative inefficiency arising from exclusivity is well established.¹⁴⁰ Monopolistic pricing invariably creates a deadweight loss.¹⁴¹ This loss emanates from the fact that some consumers who were willing to pay the competitive price for the good or service would not be able to pay the higher, monopolistic price, and would simply forgo the good or service. As a result, certain welfare-enhancing transactions that would have occurred in a competitive market would not take place under monopolistic pricing.¹⁴² To illustrate, suppose that a good is offered by a monopolistic manufacturer for $20. Assume, however, that had the production process been perfectly competitive, the same good would have been offered for a price of $12. In this example, the deadweight loss is represented by the foregone transactions of the buyers who value the good at more than $12 but less than $20. As economist William McEachern points out, this phenomenon “is called the deadweight loss of monopoly because it is a loss to consumers but a gain to nobody.”¹⁴³

Perhaps even more worrisome than its adverse effect on allocative efficiency is the distributional inequities imposed by monopolistic pricing. Since the monopolistic price is higher than the competitive price, it works to transfer wealth from consumers to the monopolist. Monopolistic pricing, in other words, allows monopolists to capture consumer surplus.¹⁴⁴ To see this, let’s return to the above example, and consider a consumer who values the good at $22. Recall that the monopolist sets the price at $20, whereas in a competitive market, the price of the good would be $12. Under perfect competition the consumer would have paid $12 for the good, thus deriving a surplus of $10 ($22 – $12) from the transaction. Under monopolistic pricing the surplus of the consumer shrinks to $2 ($22 – $20), with the $8 lost to the consumer being transferred to the monopolist—all relative to a competitive market.

To understand how fair use remedies the allocative inefficiencies resulting from the exclusivity granted by copyright protection, consider a copyright owner who offers their work for a fixed license fee, which represents the profit-maximizing amount for them. As opposed to the general analysis unfolded in Part II, we now assume that, for whatever reason, price differentiation is impracticable from the rightsholder’s perspective.¹⁴⁵ Our theory submits that under such circumstances, the mere existence of fair use for certain users creates a positive externality for other users who have no fair use claim.¹⁴⁶ In this respect, the number of voluntary transactions may increase, decline, or remain unchanged, but what bears emphasis is that fair use avails the entire universe of users, including those users who would never persuade the court that their use is considered fair.

To see this counterintuitive outcome, suppose that the relevant users are five parodists and two satirists. For this example, assume that the parodists’ valuation of using the work is $10,000, while the satirists’ valuation is, say, $6,000.¹⁴⁷ For simplicity’s sake, assume that the damages in case of infringement are likewise $10,000. It is easy to see that if the monopolist has to determine a fixed, undifferentiated asking price, this price will be either $10,000 (thus authorizing only parodists) or $6,000 (thus authorizing all users, satirists included). The profit-maximizing price in that case is $10,000, since 5 × $10,000 > 7 × $6,000. Therefore, only parodists manage to obtain authorization from the owner, while satirists are precluded from using the work in light of their unwillingness to pay $10,000, neither as licensing fees nor as damage awards.

Things change dramatically, however, in a world with fair use. To begin, suppose any parodist holds 0.5 probability of obtaining a fair use ruling in their favor, whereas satirists have no chance of convincing the court that they are entitled to a fair use ruling. But note, while satirists will rarely enjoy a fair use ruling in their favor, they in fact manage to obtain user authorization in a world in which the fair use doctrine exists. In this world, the owner can never sell at $10,000: if they were to stick to this asking price, all parodists are incentivized to use the work without permission, as the expected value of using without authorization is $5,000 (0.5 probability multiplied by $10,000 in damages). Therefore, the two relevant pricing schemes are either $6,000 (authorizing only satirists) or $5,000 (authorizing all users). The

rightsholder is expected to set an asking price of $5,000 since 7 × $5,000 > 2 × $6,000.¹⁴⁸

If, on the other hand, any parodist holds 0.9 probability of obtaining fair use, this increased probability simply results in the rightsholder focusing exclusively on negotiations with satirists, setting an asking price of $6,000 as 7 × $1,000 < 2 × $6,000.

Interestingly enough, this example illustrates not our primary argument that fair use bolsters users’ bargaining power, but rather, that if rightsholders are subject to a fixed licensing fee, the doctrine may avail even users with zero probability of obtaining fair use protection. The hitherto undiscussed impact of fair use on copyright pricing allows them to enjoy copyrighted content they would not have in a world without fair use.

It should be noted that while parodists in the latter example will not be willing to pay the fixed price required by the rightsholder for authorization, they will manage to reach a favorable settlement if the copyright owner decides to sue them for infringement. Due to their enhanced probability of enjoying a fair use ruling, a settlement agreement is expected to feature extremely low payment on their behalf.¹⁴⁹

B. Redistributing Bargaining Surplus

In addition to improving allocative efficiency by increasing the number of users who enjoy owner authorization, fair use also has the effect of ameliorating the distributive distortions arising from copyright protection. As already noted, without fair use, rightsholders are positioned to capture the lion’s share of the users’ bargaining surplus by setting up prices that approximate users’ maximal valuations. In our previous example, even the five parodists who are willing to pay $10,000 for the right to use a work would have to fork over to the copyright owner—who sets an asking price of $10,000—all of their bargaining surplus.

This unfortunate outcome exemplifies monopolistic holdout. More specifically, monopolistic rightsholders manage to extract increased payments particularly from those users who consider the work extremely valuable. Pertinent examples include young technological entrepreneurs who are in need of particular copyrighted software in order to advance their startup initiative, or documentary filmmakers at the dawn of their career who are required to negotiate with a myriad of rightsholders in order to actualize their cinematic vision.

These users, and others, confront a significant barrier erected by copyright owners, who strategically hold out to extract exorbitant licensing fees. On our theory, the fair use doctrine counterbalances such strategic behavior. In addition to improving licensing terms for all users who possess a fair use claim (and, as exemplified earlier, even for those who do not), the doctrine helps reduce monopolistic holdouts in negotiations. This insight is not merely theoretical. It can be seen at work in the aftermath of the Supreme Court’s recent decision in Google LLC v. Oracle America, Inc..¹⁵⁰ The ruling has won commentators’ accolades for lowering entry barriers for smaller startup initiatives: consistent with our analysis, the ruling eroded the strategic incentive of powerful software owners to prevent smaller competitors, seeking interoperability with industry standards, from entering the market.¹⁵¹ Smaller developers can currently draw on the Google decision to acquire what is needed from a preexisting application programing interface, to provide consumers an innovative, transformative technological program.¹⁵²

The Warhol decision withheld the user-advantaging trend that bestows fair use protection even on mildly transformative users. Ample criticism has been directed against the Court since the decision was handed, primarily spotlighting the confinement of artistic freedom inevitably imposed by their ruling.¹⁵³ But one crucial aspect keeps eluding the commentators. As our analysis shows, the Court’s decision not only restricts artistic expression, but also diminishes the bargaining power of users in negotiations with rightsholders and thereby increases the price of copyrighted content. A narrow view of fair use makes one miss this aspect.

C. The Role of Damage Awards

To equip users with the full force of fair use, it is imperative to ensure that other copyright law doctrines may chill the effect this Article identifies. In particular, exaggerated damage awards may undesirably offset the economic virtues of the fair use doctrine. This is an especially grave concern in the copyright domain, as copyright owners typically sue for statutory damages. As Ben Depoorter noted, “[o]nce infringement has been established, a plaintiff may elect a statutory damage award. In doing so, 17 U.S.C. § 504(c) of the 1976 Copyright Act relieves the copyright holder from the burden of providing any evidence whatsoever of actual harm. Among developed Western democracies, the U.S. copyright statutory framework is exceptional.”¹⁵⁴ Indeed, under the current regime, statutory damages for watching an illegal livestream may amount to $150,000.¹⁵⁵ Oren Bracha and Talha Syed have similarly pointed out that “[t]he most troubling [aspects of statutory damages] are those cases in which massive supracompensatory damages are inflicted on ordinary individuals who are unable to spread the impact of such awards through limited liability or dispersed ownership.”¹⁵⁶

Apart from the usual pitfalls scholars associate with excessive copyright damages—namely, overdeterrence and suboptimal use of copyrighted works—we wish to emphasize its adverse impact on the licensing leverage that fair use provides to users. To see this, return to the main example on which we draw to convey our conception of fair use. Assume that rather than $10,000, Francine is expected to enjoy $50,000 in damages if she prevails in court. In this scenario, as in the case in a world without fair use, Ella is devoid of any feasible alternative to negotiations: the value of unauthorized use to her is 0.5 × (-$50,000) + $8,000 = -$17,000, which means that even in a world with fair use, she has no credible threat of using Francine’s work without authorization. Under these circumstances, the fair use doctrine does not bestow upon Ella a credible threat (and licensing leverage thereof) as long as her probability of prevailing in court falls short of 0.84.

By the same token, courts’ commitment to relatively modest awards is expected to significantly enhance the impact of fair use on users’ bargaining standpoint. Modest awards imply that even a user with a low probability of persuading the court of their entitlement to fair use will enjoy licensing leverage in negotiations with copyright owners. Taking this idea to the extreme, suppose that Francine is expected to be awarded $5,000 if she prevails in court. Recall that Ella values the use of Francine’s work at $8,000. In this case, Francine’s a-priori asking price is reduced irrespective of fair use: even without the doctrine, Ella will not be willing to pay any licensing fee that surpasses $5,000, since this would make unauthorized use more beneficial. Under the fair use doctrine, this price will drop even further.

Excessive damage awards imply that even users with a strong fair use claim might rationally refrain from an unauthorized use to avoid the insurmountable expected loss in future copyright litigation. We, therefore, call upon judges and legislators to determine damages in copyright cases when accounting for the possible erosion of users’ negotiation standpoint. In other words, we submit that by exhibiting restraint in the determination of damages, decisionmakers can bolster the hidden function of fair use; yet, by superfluously awarding damages to rightsholders, they might nullify this function in its entirety.

D. The Latent Virtue of Ambiguity

Our theory of fair use also puts ambiguity in a different light. A recurring criticism of the fair use jurisprudence concerns its uncertainty. The ambiguity of the fair use doctrine has been accused of overdeterring individuals from using copyrighted content. As James Gibson argued, even users with a strong fair use claim may rationally elect to license copyrighted content or refrain from using it altogether in order to avoid the inherent uncertainty that attends the fair use doctrine.¹⁵⁷ Losing on a fair use claim comes at a high price: a court may order the unlucky defendant to pay high statutory damages. Anticipating this, users may rationally choose not to assert their fair use claim in court, and instead, buy a license from the copyright owner. Gibson termed this dynamic “rights accretion.”¹⁵⁸ Furthermore, he described it as an ongoing process by which copyright holders broaden the scope of their protection.¹⁵⁹

Our theory points to a potentially countervailing effect. The uncertainty that characterizes the fair use doctrine may actually help users in negotiations with copyright owners. This is because the inherent ambiguity embedded in the fair use doctrine enhances the licensing leverage of users, relative to a bright-line-rule fair use doctrine. To demonstrate the argument, we first provide a brief description of the ambiguity inherent in extant fair use jurisprudence, and then we point out its advantages compared to a world in which the fair use ambiguity does not exist.

In its current form, the fair use doctrine is an open-ended standard, rather than a rule.¹⁶⁰ As the time-honored distinction suggests, rules are well-defined legal commands that offer a precise definition of a proscribed action or conduct. Conversely, standards are legal provisions that employ a more general, obscure description, thus subjecting the lawfulness of a particular behavior to judicial discretion ex post. While standards allow the legal system to function with greater flexibility, rules provide actors with a greater degree of clarity and certainty. As has been noted before:

[T]he ex post guidance provided by courts is often confined to the specifics of the case at hand and does little to clarify the realm of legitimate behavior for other actors. The unpredictability associated with standards affects not only wrongdoers, but also law-abiding citizens who wish to act in accordance with the law but cannot readily discern what acts are permissible.¹⁶¹

As noted above, fair use is a prototypical standard.¹⁶² Fair use jurisprudence is ridden with terms that may purport to be synonymous to fair use, but in fact provide little or no ex ante clarity with respect to their applicability to a given case. Parodic use, for example, was tautologically defined by the Supreme Court as anything that may be reasonably perceived as a parody.¹⁶³ The concept of transformative use has likewise eluded any consistent definition,¹⁶⁴ and the “public benefit” test, to which courts increasingly reference, is inherently uninformative.¹⁶⁵ All of this implies that even when the user possesses a strong claim, fair use protection is hardly guaranteed. Nor can it be completely ruled out even in the presence of users with relatively weak claims. In its current conception as a quintessential standard, therefore, the user and the owner confront a given probability that fair use will be recognized. But as noted earlier, this probability—created by the malleable, open-ended environment in which fair use determinations are being made—may render a user’s threat of resorting to unauthorized use credible, which in turn creates a favorable bargaining framework that allows them to secure authorization with reduced licensing fees.

To see this, compare the current fair use regime with an alternative hypothetical regime in which fair use is governed by rules, namely, all permitted uses are well-defined on an ex ante basis. This alternative design leaves no room for uncertainty as to the defense’s applicability: the probability that fair use will be recognized in a given case is either zero or one. While allowing clarity and complete reliance, we wish to stress the adverse effect that such dichotomy carries on parties’ bargaining. Begin with cases wherein fair use will be conferred upon users with complete certainty. It is evident that whenever a fair use ruling is guaranteed, users are unwilling to pay for licensing, and negotiations will never take place. On the other hand, if there is no chance for a user to enjoy a fair use judgment, they are essentially confronting a world without fair use, hence the doctrine fails to bestow licensing leverage upon them.

This comparison of a standard-based versus rule-based fair use illuminates the surprising virtue of the current design of the fair use doctrine. To be sure, each user individually, if asked, would say they prefer to obtain fair use with certainty, but the actual comparison that needs to be considered here is whether, behind a veil of ignorance, the right to use copyrighted content without permission should be allocated with certainty to a distinct, small class of users, or with uncertainty to a class of a broader scope. Users may reasonably subscribe to the latter. As noted earlier, a well-defined fair use doctrine not only allows fewer users to invoke the right in court, but more importantly, it also deprives all the rest from the licensing leverage they would have enjoyed under uncertain fair use, thereby subjecting them to the choice of paying the monopolistic asking price or avoid using.

Indeed, the current design of fair use facilitates a bargaining framework in which users enjoy discounts in asking prices on account of the possibility of a future fair use judgment in their favor. Conversely, a clearly and fully specified fair use doctrine will have no effect on owner-user bargaining: it advances fair use as a mere substitute to negotiations, rather than a complement. If parties foresee a fair use ruling with probability 1, bargaining will not take place; if a fair use judgment is not feasible, then parties essentially reside in a world without fair use, and the doctrine does not therefore impact their negotiated licensing terms. Either way, predicating the fair use doctrine as a system of well-defined bright line rules precludes its function in assisting users.

This insight corresponds to a handful of scholarly works that have stressed the merit of standards, compared to rules, at facilitating trade. The 1995 works of Jason Scott Johnston,¹⁶⁶ and Ian Ayres and Eric Talley,¹⁶⁷ have independently demonstrated that when it comes to bargaining over an entitlement, uncertainty is bliss. Both articles showed that standards have the effect of splitting entitlements between parties, which thereby enhance bargaining and negotiations. When entitlements are split, each party can buy or sell their share of the entitlement to the other.¹⁶⁸ The same is true of fair use. Fair use has the effect of splitting rights in expressive content between rightsholders and potential fair users.¹⁶⁹ Accordingly, in negotiations between them, the copyright owner sells to the potential fair user the right to use the work while the potential fair user sells away their privilege to assert fair use.

Interestingly, fair use’s ambiguity not only aids users with a strong fair use claim, but it also broadens the scope of user population that enjoys licensing leverage. To see this, consider the widely accepted distinction between parodies and satires, which prevails since Campbell.¹⁷⁰ Traditionally, it has been argued that this distinction favors parodists by exempting them from any authorization requirements, while disadvantaging satirists who enjoy no similar privilege.¹⁷¹ But this argument, too, overlooks the hidden benefit that users at large—parodists and satirists alike—can reap from fair use. To see this, it is necessary to take a step back and picture a world without fair use protection granted to parodies. In such a world, the author of the original work holds the upper hand by exercising complete control over the licensing process and can exclusively decide which subsequent works to authorize. The vestment of fair use privileges on parodies spills over to hybrid works that combine critical commentary on the original work as well as more general statements that amount to satire.¹⁷² This, in turn, means that satirists, too, reap some benefit from fair use. The effect of fair use on satirists is never zero. Because there is no clear distinction between parodies and satires, the fair use doctrine—on account of this very ambiguity—bestows bargaining leverage not only on parodists, but also on satirists.

Conclusion

In this Article, we uncovered a crucial, yet overlooked, function of the fair use doctrine: the empowerment of users in negotiations with copyright owners. The fair use doctrine endows users with a credible threat to leave the negotiation table and use the work without permission. This credible threat allows users to force copyright owners to lower their licensing fees, thus enhancing the total number of uses and increasing the share of the bargaining surplus kept by users. Our theory maintains that the principal effect of fair use is to facilitate market transactions involving copyrighted content, and not to bypass them as other theorists have suggested. Our analysis thus shows that the impact of fair use in the copyright domain is far greater than previously thought. Importantly, our theory of fair use is fully consistent with preexisting scholarly contributions; it complements them, not competes them. The addition of our theory to the existing literature on fair use demonstrates the full prowess of fair use in protecting users interests and needs in the copyright world.

98 S. Cal. L. Rev. 761

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Roy Baharad *

* Doctoral Candidate, University of Chicago Law School.

Gideon Parchomovsky†

Robert G. Fuller, Jr. Professor of Law, University of Pennsylvania Law School; Edward Silver Professor, Faculty of Law, The Hebrew University of Jerusalem. We thank Shiri Alon, Clark Asay, Ian Ayres, Shyamkrishna Balganesh, Oren Bar-Gill, Stefan Bechtold, Abraham Bell, Bari Britvan, Mala Chatterjee, Melissa Eckhause, Shira Ephron, Kristelia Garcia, Yehonatan Givati, Ehud Guttel, Thomas Haley, Lital Helman, Laura Heymann, Justin Hughes, Adi Libson, Peter Menell, David Nimmer, Shmuel Nitzan, Sarah Polcz, Matthew Sag, Peter Siegelman, Christopher Sprigman, Alex Stein, Alfred Yen, Eyal Zamir, and participants at the American Law and Economics Association Annual Conference and at the Seventh Copyright Scholarship Roundtable at Columbia Law School, for valuable comments and suggestions. We are especially indebted to Joseph Fishman for his enlightening remarks. For excellent research assistance, we thank Ron Bechar, Guy Cohen, Rachel Hujsa, Ruoyu Ji, Noam Kozlov, Ariel Melitz, Jeremy Rapaport-Stein, Ido Schlesinger, Yoav Stoler, Jude Taragin, Amir Tzur and Miriam Weinstock. Parchomovsky thanks the Israel Science Foundation for research support.

Mind the Gap(s): Mitigating Harassment in a Post-#METOO Workplace

July 2025July 2025Jamillah Bowman Williams,* Elizabeth C. Tippett† & Anu Ramdin‡

In a post-#MeToo workplace, harassment remains pervasive, and harassment law still fails to provide protection for the harms experienced by many workers—particularly those in the most vulnerable jobs. Even when reform efforts are introduced through legislation, courts, and agency guidance, it often does not provide greater power, autonomy, and dignity to women in ways that would more meaningfully protect them from workplace abuse. We are the first to create a database of state legislation, including over three thousand bills, that allows us to empirically analyze the extent to which lawmakers comprehensively address harassment following the rise of the #MeToo movement. We assess comprehensiveness by examining how responsive legislation is to existing gaps in legal protection during the five years following the 2017 tweet that took #MeToo activism global, relative to the 2016 baseline period. We found that states introduced a wide breadth of reforms to combat harassment and gender inequality, including some changes that address longstanding gaps in legal protection. Gaps persist, however, and in some cases worsened post #MeToo. Going forward, reform efforts by state legislatures—and all legal stakeholders—will prove most effective if they move away from narrow conceptions of sexual harassment and follow the voice of workers, pursuing a broad, multi-layered agenda around gender equity that is responsive to the realities of our evolving workplace and society. This is especially true in 2025 as the Trump administration redirects the EEOC’s resources towards attacking diversity, equity and inclusion measures.

Introduction

Tarana Burke coined the phrase “Me Too” in 2006 in support of Black women and girls of color who had survived sexual violence, encouraging them to share their stories despite the many pressures they faced to remain silent.¹ Social media galvanized the movement in 2017 after Alyssa Milano took to Twitter, posting: “If you’ve been sexually harassed or assaulted write ‘me too’ as a reply to this tweet . . . ‘we might give people a sense of the magnitude of the problem.’ ”² The #MeToo³ hashtag was used 19 million times between 2017 and 2018.⁴ Sustained digital participation increased the movement’s visibility and maintained its momentum beyond the boom and bust trend typically observed on social media.⁵ Online engagement surrounding the #MeToo movement also served as a catalyst for offline action, evolving into highly publicized protests, employee walkouts, and historic strikes.⁶ For example, in 2018, McDonald’s employees organized a historic multi-state strike against the company’s sexual harassment policies.⁷ Protesting workers wrote “#MeToo” on signs and covered their mouths with tape, bridging the gap between social media activism and traditional means of protest.⁸ After union-led campaigns and employee-staged walkouts, prominent companies in industries from technology to hospitality changed existing workplace policies such as mandatory arbitration.⁹

Subsequently, the hashtag #TimesUp, referencing the TIME’S UP Legal Defense Fund (“TULDF”), was created to solve the issues #MeToo revealed.¹⁰ TULDF sought to support women of color and low-wage women in the workplace, raising over $24 million to connect these women to attorneys and media specialists.¹¹ The movement also brought an increase in enforcement activity at the Equal Employment Opportunity Commission (“EEOC”), the government agency responsible for enforcing workplace discrimination law. In 2018, the EEOC reported that sexual harassment charges were up nationwide—the first increase observed in a decade.¹² In 2018, the EEOC received 7,609 sexual harassment charges compared with the 6,696 charges received in 2017.¹³ The EEOC recovered almost $104 million more for those with sexual harassment claims between 2018 and 2021 than between 2014 and 2017.¹⁴ The agency capitalized on #MeToo momentum by increasing lawsuits to enforce sexual harassment law and holding more employers accountable.¹⁵

This widespread activism also influenced legislatures. In the five years after #MeToo went viral, thousands of bills were introduced—mainly at the state level. These bills covered a wide range of topics related to gender equity in the workplace, including harassment training, nondisclosure agreements, forced arbitration for harassment claims, pay equity, and leave law. This surge of legislative activity was aimed at eliminating harassment and addressing gender equity in the workplace.¹⁶

While it was clear that legislatures were becoming more attentive to gender equity following the increased activism, it remained unclear whether the new reforms were getting to the root of the issues that cause harassment and addressing the legal gaps that allow harassment to persist. #MeToo media coverage tended to focus on certain victims—namely, the white women in the entertainment industry and the nondisclosure agreements (“NDAs”) that kept them silent.¹⁷ We argue that a more holistic approach is required both for progress over time and for reaching a broader range of working women. This is not unlike the “Swiss Cheese Model” adapted for use to control the spread of infection during the COVID-19 pandemic.¹⁸ The Swiss Cheese Model of risk reduction, developed by James Reason in the 1990s, visually demonstrates how a variety of strategies and actors can work together to reduce risk of harm.¹⁹ In the context of harassment, no single intervention such as restricting NDAs or increasing training can prevent all harassment, but multiple interventions can make a lasting difference. This is particularly true when the approach aims to reduce gendered power dynamics that make harassment more likely.²⁰

To empirically analyze the extent to which lawmakers were comprehensively addressing harassment and gender equity following #MeToo, our team of researchers and lawyers at Georgetown University collected and coded over 3,000 federal and state bills introduced from 2016 to 2022, some of which passed into law. We also analyzed how timing, geography, and political factors shaped the legal activity following #MeToo, relative to the 2016 baseline period. Our dataset is defined broadly and includes all harassment-specific legislation, as well as legislation addressing other gender equity issues including: pay equity, expanded coverage under Title VII of the Civil Rights Act of 1964 (“Title VII”), leave and accommodation, and occupational protections that address intersectional subordination. We found that the variety of legislation introduced by state legislators was consistent with the Swiss Cheese Model of risk reduction; however, there was wide variation across states.

Figure 1. Swiss Cheese Model for Reducing Harassment

This Article focuses primarily on state legislation because virtually all reform activity during the sample period occurred at the state level. Harassment law and gender-based reforms more broadly tend to follow a similar pattern of state-led rights protection and enhancement due to the gradual trend of federal courts contracting civil rights in the workplace among other venues. Federal lower courts, in particular, have increasingly issued employer-friendly Title VII and Americans with Disabilities Act (“ADA”) decisions that have been both formally and informally codified into law.²¹ Congressional gridlock has also led to a standstill with respect to anti-harassment legislation.²² Moreover, extreme partisanship in both Congress and the judiciary diminishes the likelihood of relying on Congress to act as a check when courts roll back rights, as they have in the past.²³ Only six federal reforms related to harassment and workplace gender equity passed during the five years following #MeToo; of those, only two had system-wide effects: the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 and the Speak Out Act of 2022. By contrast, states have been a hotbed of legislative activity.²⁴

State legislation continues to play a central role in law reform, particularly under a second Trump administration that has signaled its hostility to transgender rights and diversity and inclusion programs. For example, Trump’s Executive Order 14168 declared that “ ‘sex’ is not a synonym for and does not include the concept of ‘gender identity.’ ”²⁵ Although the Order does not supersede the Supreme Court’s 2022 Bostock v. Clayton County decision recognizing sexual orientation and gender identity as sex discrimination under Title VII,²⁶ the Executive Order attempts to rescind the EEOC’s 2024 harassment guidance regarding gender identity.²⁷ In this context, the Trump administration seems more likely to roll back available civil rights coverage and enforcement than engage in meaningful reform.

Thus, states now, more than ever, remain important “laboratories of democracy,” a term Justice Brandeis coined in 1932, for achieving nationwide rights’ protection.²⁸ A close look at state legislative activity reveals the state-specific innovation and experimentation apparent in the variety of bills introduced. Nevertheless, the path from state-specific legislative innovation to systemic federal reform is not linear. Rather, broader effects depend on state-specific efforts influencing a combination of players from different arenas, including state courts, state agencies, federal courts, executive action, and even voluntary action by private entities.

We hypothesized that post #MeToo, the most significant activity at the state level would focus on harassment training and NDAs, which were scrutinized in the extensive media coverage. While high-profile support for these kinds of reforms did catch the attention of state legislators, with many bills introduced and passed, state legislators also introduced and passed many bills addressing systemic issues such as pay equity, leave law, and reforms to fill gaps in protection left in the legal landscape prior to #MeToo.

Although media coverage of the #MeToo movement may have overlooked many of the biggest and more systemic obstacles to workplace gender equity—such as lack of coverage under anti-discrimination law, employer retaliation, Title VII interpretation, and underenforcement—many states began to tackle these issues. We argue that states must continue this momentum not only to mitigate harassment more broadly, but also to address intersectional issues of economic precarity and racism that make harassment more frequent and particularly harmful to low-wage workers, who are disproportionately women of color.²⁹ For example, while women of color face higher rates of harassment due to compounding systems of subordination, most of the legislation proposed only strengthens protection for claims of sexual harassment or assault, and not intersectional subordination based on sex and race that is a common experience for women of color.³⁰ As a result, those experiencing intersectional harassment or discrimination based on multiple protected characteristics, including race, ethnicity, or national origin, are left vulnerable.³¹ Legal remedies that fail to consider experiences unique to women of color or other groups with multiple marginalized identities will ultimately fail to root out discrimination and harassment for those individuals, leading to underenforcement.

Nonetheless, our data reveals a broad array of state bills over a sustained period of time, which is a promising development. Complex social problems like harassment have numerous causes, and no single reform will prevent all instances of harassment, encourage employers to respond appropriately, or ensure a just legal remedy for the harm. We expect the net effect of the legislation, along with the social and attitudinal changes resulting from the #MeToo movement, to be positive and lasting. Not all legislation, however, had an equal chance of success to reduce broader trends of harassment. A close examination of the proposed and enacted legislation presents a mixed picture, which we discuss in depth in the empirical analysis that follows.

This Article is organized as follows: Part I explains how and why harassment persists today by looking at its historical origins, the current landscape, and how harassment relates to a growing trend of workplace violence. In Part II, we will discuss the specific gaps in legal protection that allow harassment and gender disparities to persist. In Part III, we offer original empirical analysis that illustrates trends in the anti-harassment and gender equity legislation that emerged during the five years post #MeToo. Finally in Part IV, we discuss the implications of our data for courts, lawmakers, and agencies, including what is still needed to mitigate workplace harassment post #MeToo.

I. The Persistent Nature of Workplace Harassment

This Part provides an overview of the underlying social determinants that yield high rates of workplace harassment over time.

A. The Historical Origins of Harassment

As various scholars have argued, harassment is not principally about sexual desire, but rather a reflection of the distribution of power within the particular workplace and society more broadly.³² It is a form of social behavior that reflects the dominant group’s—in this case men’s—ability to exclude, marginalize, or dominate less powerful individuals within the workplace.³³ It can often function to undermine the competence and confidence of marginalized groups and interfere with work performance, while also setting the norm of what is accepted or acceptable behavior.³⁴ Even harassment that is motivated in whole or in part by sexual desire reflects the perpetrator’s power to impose his demands and desires on others who are poorly positioned to rebuff those demands without consequence.³⁵

Harassment therefore serves as a mirror for systemic hierarchy, within the microcosm of the workplace and within the culture and larger historical context of a nation. The subordination of women was a central feature of nineteenth and twentieth century law and work arrangements. Women lost their legal personhood upon marriage through a principle known as coverture, wherein they could only acquire property or sign contracts through the legal personhood of their husbands.³⁶ Women did not secure the constitutional right to vote until 1920.³⁷ Many factories in the early decades of the twentieth century were explicitly segregated by gender, with women and men working in separate departments at separate pay rates, eating in separate cafeterias, and even entering and exiting from different entrances or on separate schedules.³⁸ Until 1974, banks could deny loans and credit cards to married women unless their husbands co-signed the application.³⁹ The legal and social foundation of the United States is one where men have power over women, are superior in status, and are free to control them.

America’s history of slavery, segregation, and white supremacy is also inextricably intertwined with the history of work, which shapes the experiences of Black and other racialized women.⁴⁰ Slavery was in part a workplace hierarchy predicated on violence and white supremacy.⁴¹ Black women were chattel assets, whose purpose in the economy and social order was to labor and serve white slave masters and their families.⁴² White slave masters frequently raped them, bred them to produce more workers, and subjected them to physical and psychological terror to maintain control.⁴³ After slaves were emancipated, segregation became a workplace reality, with Black women being relegated to the most menial and low-wage jobs.⁴⁴ Title VII offered reform, but it did not fully dismantle job segregation and workplace hierarchies predicated on white privilege.⁴⁵

Immigrant workers in the United States have also faced shifting, yet persistent, forms of discrimination. Although immigrants in the nineteenth and early twentieth century received privileged treatment compared with Black workers,⁴⁶ there is a long history of discrimination and subordination of immigrant populations, particularly Latino and Asian Americans. These include, for example, the Chinese Exclusion Act⁴⁷ and the internment of Japanese Americans during World War II, which kept Asian women workers excluded, marginalized, and exploited.⁴⁸ Continued subordination of both Black and immigrant women is also evidenced by the exclusion of domestic and agricultural workers from the 1938 Fair Labor Standards Act and the 1935 National Labor Relations Act.⁴⁹ These positions are overwhelmingly occupied by immigrant women and Black women, and many are still excluded from these legal protections today, making them more vulnerable to discrimination and abuse. Further, while Title VII prohibits discrimination on the basis of national origin, employers are permitted to discriminate against workers on the basis of immigration status.⁵⁰

Workers who belong to more than one subordinated group—such as Black women, immigrant women of color, or Black immigrant women—face compounded marginalization, as Kimberlé Crenshaw originally argued in her landmark article on intersectionality.⁵¹ Such discrimination is also replete within the historical record, in which a combination of race and sex-based discrimination operated in tandem. For example, the legislative history of Title VII suggests “sex” was included as a protected category based in part on arguments that protecting race, but not sex, would give Black women an advantage over White women.⁵² Likewise, during debates in the 1970s over whether to finally include domestic workers in the federal minimum wage law, opponents painted the work itself—performed primarily by women of color—as undeserving of minimum wage, while the White housewives who employed them were depicted as unqualified to calculate wages and hours.⁵³

Throughout United States history, women and people of color have also been vastly underrepresented in Congress, as well as within state legislatures.⁵⁴ Underrepresentation of these groups as lawmakers—both now and historically—reinforce hierarchies and subordination over time, by affecting which types of bills get introduced and passed, and which end up on the cutting room floor. Representation can shape values, priorities, and debate around who is deemed worthy of protection, in what ways, and whether legal interventions are needed to reduce inequality. Men—specifically White men—are also markedly overrepresented in the judiciary, where the laws are enforced.⁵⁵ The life experiences and perspectives of the judiciary affects their approach to cases and the parties with whom they identify. Biases influenced by one’s social position can then get baked into precedent, which later constrains and influences subsequent rulings.⁵⁶ Thus, lack of representation in both legislatures and courts can facilitate and exacerbate gaps in the law, ultimately failing to provide accountability and leaving women workers vulnerable to exploitation and abuse.

B. The Current Landscape of Workplace Harassment

Current national statistics reflect the continued influence of these historical patterns of subordination. Hispanic women earn fifty-seven cents for every dollar earned by White, non-Hispanic men.⁵⁷ In 2020, Black women earned sixty-four cents for every dollar earned by White, non-Hispanic men.⁵⁸ Over time, this gap fuels income and wealth disparities; Black women are estimated to lose nearly one million dollars over the course of their careers.⁵⁹

Relatedly, broad societal hierarchies and unevenly distributed power within organizations also affect workplace culture, behavior, and policies.⁶⁰ Power can take many forms; however, economic power or lack thereof tends to be at the foundation. Thus, when one’s labor is devalued—as occurs most substantially with Black and Hispanic women wage gaps compared with White, non-Hispanic men—this fundamentally affects the bargaining power one has with respect to protecting themselves from harassment at work.⁶¹ Economic disparities in bargaining power are compounded by continuing racism and sexism in low-wage industries where women of color are overrepresented.⁶²

The EEOC has published a list of workplace conditions that increase the likelihood of harassment. The vast majority of the conditions noted are common features of low-wage industries.⁶³ For example, low-wage and precarious industries such as hospitality, food service, modeling, agriculture, construction, and custodial work often: (1) lack effective policies and procedures; (2) have minimal to no oversight; (3) require working in isolation; and (4) prioritize customer and client well-being over the worker.⁶⁴ It is thus unsurprising that the women working in these industries experience the highest rates of harassment, among other forms of workplace violence.⁶⁵ For example, surveys have found that 65% of casino workers reported unwanted touching by guests, while over half of restaurant workers reported sexual harassment as occurring on a weekly basis.⁶⁶ One casino worker described how the harassment was intertwined with her wages, stating that a guest wanted to “put the tip on [her] ass” and took back the tip when she refused.⁶⁷ Another worker, this time at a hotel, described having to jump over the beds to escape the room of a guest who exposed themselves to her while requesting shampoo.⁶⁸ COVID-19 has only worsened these rates; one nationwide study found that 78% of surveyed restaurant workers reported an increase in hostility and harassment as they enforced COVID-19-related policies.⁶⁹

Harrowing accounts of harassment are also extremely prevalent among domestic workers and farmworkers, who are among the least protected due to the working conditions and the historical factors discussed above. Studies have found that 48% of domestic workers have had clients expose themselves, while 80% of farmworkers have experienced some form of sexual violence while at work.⁷⁰ In many of these cases, low-wage workers’ bargaining power is further diminished by language barriers or distrust of government agencies due to immigration status.⁷¹

Gender and racial hierarchies also shape who has access to leadership positions that hold power in the workplace and in government. For example, women and people of color remain vastly underrepresented within business leadership ranks.⁷² These statistics remain stubbornly sticky despite nearly sixty years of anti-discrimination law under Title VII. Reviewing decades of national employment data, sociologists Kevin Stainback and Donald Tomaskovic-Devey found that Black men and women, as well as White women, made far fewer gains in managerial jobs than in professional jobs.⁷³ White men retained a disproportionate share of managerial jobs, which these authors attributed to continued White male advantage that led them to be “pushed up in organizational hierarchies.”⁷⁴

Women also face gender-based harassment even when they break social and historical norms and move up to the top of the power hierarchy. In these cases, social and historical hierarchies are disrupted, and men resist and engage in demeaning behaviors to restore the status quo. Sociologist Raewyn Connell might characterize the problem in terms of “hegemonic masculinity”—“practice[s] . . . that allowed men’s dominance over women to continue,” that “embod[y] the currently most honored way of being a man” and “requir[e] all other men to position themselves in relation to it,” and that “ideologically legitimat[e] the global subordination of women to men.”⁷⁵ This type of harassment is not necessarily sexual in nature and can consist of taunting, insubordination, and use of demeaning slurs and images. This is less discussed than the harassment that is driven by sexual desire and targets low-status women. However, at its core, it is driven by systemic power hierarchies that exploit women or justify their differential treatment, similar to other types of harassment.⁷⁶

A poignant example are the numerous accounts of workplace harassment in law enforcement and the military. In 2018, it was reported that almost 25% of women in active-duty military experienced sexual harassment while in the military.⁷⁷ For women veterans, the percentage who reported experiencing sexual harassment rises to 80%, suggesting underreporting may be a significant problem for the military.⁷⁸ One particularly horrifying example comes from a female Navy lieutenant. In 1992, she went public with a personal story of being sexually assaulted by “the gauntlet,” which was described as a “nightly, coordinated, and systematic sexual assault of women who found themselves on the third floor of the hotel.”⁷⁹ High rates of harassment are also commonplace in law enforcement. One nationally representative survey of law enforcement officers found that 71% of female law enforcement officers have experienced sexual harassment or sexual violence in the workplace.⁸⁰ These male-dominated environments are high-risk, as women are devalued and targeted for breaking gender stereotypes and hierarchies of power.

C. Harassment as a Workplace Hazard

Based on historical and current social realities, we argue that harassment is a workplace hazard that is disproportionately distributed to women—particularly low-wage workers and women of color—creating a health and safety issue with civil rights and economic justice issues at the core. As such, harassment is best suited to be addressed by a multi-layered hazard prevention model, such as the Swiss Cheese Model we proposed above.⁸¹

Harassment is a significant hazard to workers’ mental, physical, and economic safety following historical trends of gendered and racialized subordination. Studies show workplace harassment is associated with increased rates of (1) stress, (2) anxiety and depression, and (3) post-traumatic stress disorder (“PTSD”).⁸² This effect may be particularly pronounced for women of color as they are vulnerable to harassment on the basis of both race and gender.⁸³ All three of these mental health effects are risk factors for increased rates of suicidal ideation, which also links workplace harassment to increased rates of suicide.⁸⁴

Workplace harassment frequently occurs with, and may even precipitate, other forms of workplace violence.⁸⁵ Physical violence can occur in any workplace and among any type of worker, even women in leadership; but the risk for fatal violence is highest among sales, protective service, and transportation workers, while the risk for nonfatal violence resulting in days away from work is greatest for healthcare and social assistance workers.⁸⁶ For women working in low-wage industries, the economic harms associated with workplace harassment can be particularly devastating. Economic violence can take many forms such as constructive discharge or retaliation for reporting or opposing workplace harassment, and can occur via termination, demotion, pay cuts, wage theft, or detrimental changes to job terms and conditions such as scheduling.

The detrimental effects of harassment are dangerously cyclical, leaving victims at risk of remaining stuck in these cycles. Like other health and safety hazards, preventing harassment demand multifaceted interventions, and many gaps remain. In Section II, we identify these gaps before turning to our data, which we analyze to examine the effectiveness of the overall policy response post #MeToo.

II. Legal Constraints Fail to Provide Accountability

Title VII contains no reference to the word “harassment.” Harassment law is instead a product of regulatory and judicial interpretation of the statutory language stating it is unlawful for an employer “to discriminate . . . with respect to . . . conditions, or privileges of employment.”⁸⁷ Lower courts began to recognize racial, religious and sex-based harassment claims in the 1970s,⁸⁸ while the EEOC recognized sexual harassment as a form of discrimination in 1980.⁸⁹ The Supreme Court first solidified the cause of action in the 1986 decision, Meritor Savings Bank v. Vinson.⁹⁰ The foundation set forth in Meritor would be elaborated in subsequent Supreme Court rulings.⁹¹

In this Part, we discuss ten major limitations of harassment doctrine, which leave significant gaps and fail to protect many women who are subjected to harassment at work. If the laws are ineffective, this leaves many victims without remedy, while also failing to deter future harassment due to the lack of accountability, weak enforcement of existing law, and restricted access to justice. In Part III, we examine whether the flurry of state reforms during the height of the #MeToo movement began to acknowledge and address these gaps to meaningfully improve protection for working women. In the absence of federal reform, state reform serves as both a laboratory of innovation as well as a way to gauge bipartisan support.

A. The Individuation of Harassment Evidence

As early as 1986 in Meritor v. Vinson, the Supreme Court imposed a compartmentalized frame on harassment cases, treating it as a matter of individual offenders and targeted victims as opposed to broader systemic harms in an organization. Meritor v. Vinson was brought by a Black woman, Mechelle Vinson, against her bank employer. Vinson was subject to sexual advances and repeated demands for sexual favors, fondled in front of other workers, followed to the restroom, and forcibly raped on several occasions by the bank vice president.⁹² The bank had a grievance procedure, but it would have required Vinson to report the misconduct to her supervisor—the perpetrator of the harassment.⁹³

From the outset, the Court failed to assess Vinson’s story comprehensively. It treated her harassment as an isolated circumstance and refused to consider the evidence of harassment other women at the bank were experiencing alongside Vinson as relevant to the question of whether the harasser cultivated an environment that violates Title VII.⁹⁴ This was despite the lower court’s holding that even where a woman is not the object of harassment herself, there may be a valid Title VII claim if the atmosphere fostered pervasive harassment. Instead, Justice Rehnquist concluded that the District Court did not allow the presentation of a “wholesale evidence of a pattern and practice relating to sexual advances to other female employees in her case in chief.”⁹⁵

This blinkered view of harassment is at odds with the concept of a hostile work environment, which can pervade and impact the workplace beyond one individual victim. The Court’s individualized approach also represents a marked departure from other claims available under Title VII. As early as the 1971 case of Griggs v. Dukes, the Court acknowledged that discrimination can operate systemically within a workplace and therefore permitted a wide variety of evidence from multiple sources.⁹⁶ In these Title VII discrimination cases, including “disparate impact,” “pattern or practice,” or “systemic” cases, the law acknowledges group offenses, even if individual experiences of discrimination vary and are effectuated by multiple actors and systems within an organization.⁹⁷ Consequently, the Court does not begin from the presumption that discrimination is limited to a single bad actor within the organization who has engaged in misconduct targeting a single individual.

Courts further compound the individuation of harassment claims through the routine enforcement of settlement and severance agreements containing non-disclosure provisions.⁹⁸ Such non-disclosure provisions conceal harassment, making it difficult to detect and root out patterns of abuse.⁹⁹ Settlement agreements commonly include non-disclosure provisions, and employers and their counsel often refuse to settle a case without some form of confidentiality provision. While some victims may want confidentiality,¹⁰⁰ this requirement often pressures victims to sign and remain silent in order to achieve some type of closure. This manner in which non-disclosure provisions are included in settlement agreements serves to limit collective grievances, opportunities to negotiate, and accountability for repeat perpetrators and organizations that foster hostile work environments.

B. Mandatory Arbitration Provisions

Access to legal justice under Title VII has also historically been barred for many workers by mandatory arbitration provisions. Approximately 56% of non-union private sector workers are required to sign mandatory private arbitration agreements,¹⁰¹ which represents roughly sixty million American workers.¹⁰² Of those, 30% have signed agreements that include class-action waivers.¹⁰³ Arbitration agreements have become particularly prevalent since the 2011 Supreme Court ruling, AT&T v. Concepcion, which enabled companies to enforce class and collective action waivers through arbitration.¹⁰⁴ Arbitration agreements divert claims from the public court system to private arbitration, in which neither the filings, rulings, nor proceedings are open to the public.¹⁰⁵ Even if the arbitration agreement does not require the victim to maintain the secrecy of the proceedings, arbitration is to a much greater extent shielded from public view, including media coverage and scholarly research.

Arbitration often offers poor remedies for the plaintiffs. When the arbitration agreement includes a class action waiver, the employee cannot file a collective claim in court or in arbitration, forcing them to bring an individual claim no matter the fact pattern.¹⁰⁶ Arbitration also offers few avenues for appeal, leaving workers little recourse if the arbitrator issues a bad ruling. Arbitration can further inhibit access to justice because claimants then have difficulty finding a lawyer willing to file a claim in arbitration when the deck is so heavily stacked against them. Research shows women of color are more likely to be denied access to courts than White women, due to mandatory arbitration.¹⁰⁷ This is because of the particular prevalence of these clauses in low-wage industries where women of color are overrepresented.¹⁰⁸ Thus, low-wage workers, who are already uniquely vulnerable to workplace violations including harassment and retaliation, suffer the most from contracts restricting their ability to access a court of law.

C. Coverage Gaps Constrain Workers’ Access to Courts

Many workers are not covered by key antidiscrimination and labor law statutes, leaving them with no legal recourse regardless of the merits of the claim. Title VII only covers claims against “employers,” and by extension claims brought by “employees.”¹⁰⁹ This coverage restriction means that independent contractors lack any form of protection under Title VII. Independent contractors make up over a third of the nation’s workforce,¹¹⁰ and almost half of these unprotected independent contractors are women.¹¹¹ Many of these are low-paid jobs in industries such as personal services, transportation, and educational services.¹¹² Women of color frequently land in these jobs due to the low barriers to entry, discrimination in other parts of the labor market, and the need for supplemental income.¹¹³ Research has shown that women and people of color are also overrepresented in most industries that tend to misclassify their workers as independent contractors.¹¹⁴

Title VII also largely excludes the most physically vulnerable low-wage workers from protection—often immigrants and women of color. For example, domestic workers who serve as housekeepers, nannies, babysitters, or home health care aides are often excluded from coverage if they are employed directly by individuals rather than agencies, as those individuals generally do not employ more than fifteen employees.¹¹⁵ This means that women like live-in worker, Etelbina Hauser, report having nowhere to turn for legal protection despite being “consistently groped” and pressured for “sexual services.”¹¹⁶ Domestic workers are often physically isolated from other workers, which further removes sources of social support and solidarity that might otherwise facilitate internal complaints and remediation. The physical isolation of private homes also tends to limit transparency and oversight of workplace practices. Thus, it is no surprise that studies indicate one-third of domestic workers face gender, race, language, or immigration-based abuse.¹¹⁷

Undocumented workers are nominally covered by Title VII,¹¹⁸ but the law does not prohibit workers from being fired—or deported—for their immigration status.¹¹⁹ These workers are also unlikely to be awarded back pay due to their immigration status, which reduces the legal risk for employers.¹²⁰ Immigrant workers make up a majority of the workforce in specific industries, including agricultural work.¹²¹ In these cases, the threat of termination or deportation largely cuts off any meaningful access to justice and makes them particularly vulnerable targets for harassment.

Coverage gaps that predominantly affect women of color and immigrants are no historical accident.¹²² As previously discussed, occupations in which women of color and immigrants predominated were intentionally excluded from landmark federal employment legislation in the twentieth century.¹²³ Employers have continued to treat women of color both as invisible and as their labor to control. Roles like nannies and maids are disproportionately held by immigrant women of color, traditionally employed in private homes of the mostly White middle- and upper-class, where a lack of transparency and adequate oversight gives employers the liberty to take advantage of these workers.¹²⁴

D. Retaliation Law and Its Effect on Underreporting

The legal standard for Title VII retaliation claims, which requires the plaintiffs to show that the retaliatory conduct was “materially adverse,” fails to deter low-level and informal retaliation.¹²⁵ Most courts find neither ostracizing nor harassing conduct to rise to the level of an adverse employment action for purposes of a retaliation claim under Title VII.¹²⁶ They construe the harm as not significant enough to deter someone from filing a charge.¹²⁷ Courts have even held that a negative performance review is not sufficiently “material” to support a retaliation claim.¹²⁸ And, as previously noted, judges with lifetime or fixed-term appointments may not recognize the threat that would deter a reasonable worker who lacks such security. One study, for example, revealed that many of the employment actions courts have held not “materially adverse” would actually dissuade participants from reporting.¹²⁹

The threat of retaliation can be a particularly powerful deterrent for marginalized populations.¹³⁰ Underrepresented groups within a particular workplace—such as women in non-traditional occupations, or women of color in majority White occupations—have less access to internal social networks and political capital within the workplace, which both increases the likelihood and the detrimental effect of informal social sanctions. The fear of job loss and unemployment for a low-wage worker can be so economically threatening to the employee’s livelihood that it deters them from reporting even extreme misconduct. Concerns about retaliatory deportation can weigh even more heavily on an employee’s decision-making. Moreover, even where actual retaliation is absent, workplace culture that fosters the threat of retaliation alone can deter victims from reporting.

Fears about retaliation for at-will employees who complain about harassment are particularly well-founded, despite whatever assurances human resources may provide about the company’s policy regarding retaliation. Even though retaliation for speaking up against harassment and discrimination is prohibited by law, it is a common workplace reality.¹³¹ Complainants may face formal action, such as termination, demotion, or pay cuts, as well as informal social sanctions. These repercussions originate not only from the perpetrator, but also from co-workers or supervisors who side with the perpetrator or perceive the complaint as disruptive. Studies have demonstrated that these negative consequences, such as being ostracized by coworkers, more often than not follow harassment reports.

E. Rigid Administrative Exhaustion Requirements Block Access to Justice

Title VII’s administrative filing requirement imposes a notably short time window—less than a year—for the plaintiffs to bring a harassment claim. Before Title VII claimants can file a lawsuit against an employer, they must file an administrative claim with the EEOC within 180 days of the last occurrence of harassment.¹³² Any lawsuit brought by an employee that has failed to timely file an administrative claim will be dismissed for failing to exhaust administrative remedies. This aggressive window can be unrealistic for traumatized workers who may be afraid to speak up about harassment or who may not recognize that the workplace harms they suffered qualified as unlawful harassment until years later. The narrow administrative filing window can be particularly detrimental for the vulnerable workers previously described, who may be concerned about retaliation and job loss.

These workers might reasonably choose job security over the possibility of a lawsuit, such that they may not be ready to file a legal claim until they have secured adequate support or alternate employment. Moreover, gaps in access to legal services and information often preclude workers from even knowing about the administrative filing requirement.

F. Severe or Pervasive Requirement Excludes Strong Claims

To prove harassment under Title VII, the plaintiffs must show that they were subject to unwelcome comments or conduct on the basis of a protected category (race, sex, religion, color, or national origin) that was so “severe or pervasive” as to alter the conditions of the plaintiffs’ employment and create a “hostile or abusive work environment.”¹³³ The “severe or pervasive” language originated in Meritor, although the court did not initially define the term.¹³⁴ In a subsequent 1993 ruling, Harris v. Forklift, the Supreme Court elaborated on the meaning of the phrase by listing several non-exhaustive factors that affect whether conduct is deemed severe or persuasive: (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether is the conduct is physically threatening, humiliating, or “a mere offensive utterance”; and (4) whether the conduct unreasonably interferes with work performance.¹³⁵

As several commentators have observed, the “severe or pervasive” requirement has evolved to impose a very high burden of proof on the victim.¹³⁶ For example, lower courts have inconsistently and often improperly interpreted the type of conduct necessary for a violation. In some courts, the standard has been deemed so high that it may reject claims for conduct that may be egregious, offensive, and in some cases even criminal.¹³⁷ This significantly impacts outcomes of cases, as the “severe or pervasive” requirement has become a common basis on which courts grant summary judgment against the plaintiffs. Judges have ruled that things like indecent exposure, being threatened and referred to as a Black bi[***], and being offered pornography by one’s boss, are not sufficiently severe or pervasive, thus dismissing the cases on summary judgement.¹³⁸ This leaves the plaintiff demoralized and without remedy and allows the employer to shield itself from accountability.¹³⁹

Other lower courts have misinterpreted the Harris v. Forklift opinion to require that conduct be “severe, frequent and physically threatening,” effectively requiring severe and pervasive conduct that is also physical in nature.¹⁴⁰ In McGraw v. Wyeth-Ayerst Laboratories, for example, the court held that repeated propositions, yelling, and non-consensual kissing by a supervisor was neither severe nor pervasive.¹⁴¹ Extreme lower court rulings can have a lasting effect, as courts later rely on those fact patterns and judicial interpretations to justify outcomes in favor of employers in subsequent cases.¹⁴²

G. The “Objectively” Hostile or Abusive Standard is Out of Touch

Closely related to the “severe or pervasive” requirement is the requirement that the working environment be both “subjectively” and “objectively” hostile or abusive. This means that the plaintiff perceived the conduct as hostile or abusive, and that a “reasonable person” in that situation would have found it hostile or abusive.¹⁴³

Defining reasonableness has proven difficult as courts appear to lack a clear standard.¹⁴⁴ In a 1998 case, Oncale v. Sundowner Offshore Services, Inc., the Court further noted that ensuring whether or not something is objectively hostile or abusive is crucial to “ensure that courts and juries do not mistake ordinary socializing in the workplace . . . for discriminatory ‘conditions of employment.’ ”¹⁴⁵ Here, the Supreme Court clarified that determining severity “requires careful consideration of the social context in which particular behavior occurs.”¹⁴⁶

The “objective” component of the hostile or abusive standard has also proven problematic. In the summary judgment context, judges superimpose or extrapolate from their own experiences when deciding what a “reasonable person” would consider hostile and abusive.¹⁴⁷ Yet, the judge’s own assumptions about tolerable behavior can be tainted by white and male privilege in ways they may not recognize. As previously discussed, the pervasive influence of hegemonic masculinity can lead judges to discount hostile aspects of the work environment simply because they are commonplace or fit within traditional workplace norms.¹⁴⁸

For example, in Oncale, Justice Scalia recounted a variety of workplace behaviors that he considered inoffensive, such as a football player being smacked on the buttocks by his coach—which very well could be experienced as hostile.¹⁴⁹ However, when courts—and juries—are instructed to ignore the plaintiff’s actual (subjective) experience and focus on what a hypothesized “reasonable” (objective) other would consider harassment, it is an implicit invitation to default to a framework wherein workplace culture is largely defined by and governed by White men.¹⁵⁰

Broader representation in the judiciary may begin to address this bias. In other research, we have found that there is a significant disconnect between judges’ assessments of what is “objectively” abusive and hostile and a layperson’s assessment, which may mean that judges are disconnected from social realities and evolving social norms.¹⁵¹ However, bias does not only impact judges. Racialized and sex stereotypes can also color perceptions of witnesses, fact finders, and others, clouding their view whether the plaintiff contributed to the harassment, the extent to which they feel the plaintiff is harmed by the perpetrator, and whether enduring the conduct is deemed acceptable and within the realm of their role as worker.¹⁵²

H. The Standard for Vicarious Liability

As a general matter, when an employee commits a Title VII violation, the law imposes strict liability.¹⁵³ For example, when an employee engages in sex-based discrimination or retaliates against an employee for speaking out about it, courts do not inquire whether the employer should be held vicariously liable for the conduct. Employers are simply liable for the violation. Harassment, however, is the exception. In Meritor, the Supreme Court first raised the question of whether there might be some circumstances in which employers might not be held vicariously liable for harassment.¹⁵⁴ This question was settled in two 1998 cases decided together, Burlington Industries v. Ellerth and Faragher v. City of Boca Raton (“Faragher/Ellerth”).¹⁵⁵ In these two cases, the Supreme Court imported tort principles into the employment discrimination context. The majority opinions held that employers would only be held strictly liable for harassment committed by a supervisor when the plaintiff experienced a tangible employment action, such as a demotion, firing, or pay cut.¹⁵⁶ The Court also imposed a negligence standard when coworkers were responsible for harassment. Under this rule, employers would only be held liable for harassment that they knew or should have known about, and they failed to take action to correct it.¹⁵⁷

In cases involving supervisory harassment, in which the plaintiff suffered no tangible employment action, the Court created a new affirmative defense for employers. Even when a plaintiff proves a successful harassment case—which is an uphill battle due to the constraints discussed in this section—the employer can assert an affirmative defense to evade liability. Joanna Grossman argued that the defense effectively insulates employers from liability following an initial complaint about harassment.¹⁵⁸ To assert the defense, an employer must show that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise” (the “Faragher/Ellerth defense”).¹⁵⁹

Beyond the exceptional nature of the Court’s departure from a strict liability framework, courts have also interpreted the Faragher/Ellerth defense in an expansive manner, favoring employers. In many cases, courts merely require employers to maintain anti-harassment and complaint policies, without inquiring into the effectiveness or reviewing the culture broadly.¹⁶⁰ This trend of “judicial deference” is largely why anti-harassment policies and practices have proliferated in the workplace, many of which have been found to be ineffective at curbing harassment.¹⁶¹

Likewise, the Faragher/Ellerth defense directs the blame for a hostile work environment on a plaintiff who was slow or reluctant to complain internally, rather than on the perpetrator or the employer. However, high rates of retaliation give many employees a valid reason to pause when reporting harassment or otherwise using grievance procedures.¹⁶² Only one in four women subjected to sex-based harassment reported it using an internal grievance procedure; even fewer filed a charge with the EEOC.¹⁶³ At present, it is possible for a plaintiff to file a hostile work environment claim, and, despite evidence to her benefit, lose merely because she herself failed to utilize the internal grievance procedures created by the employer.¹⁶⁴

I. Damage Caps Fail to Remedy Harms

The remedies available in Title VII cases include injunctive relief, reinstatement,¹⁶⁵ back pay, compensatory damages, punitive damages, and attorneys’ fees and costs.¹⁶⁶ Compensatory damages—that is, damages for pain and suffering—are subject to a statutory cap according to employer size.¹⁶⁷ For employers with fewer than one hundred employees, compensatory and punitive damages cannot exceed $50 thousand; for two hundred or fewer employees, the cap is $100 thousand; for five hundred or fewer, the cap is $200 thousand; and for five hundred employees or more, the cap is $300 thousand.¹⁶⁸

Damage caps for compensatory and punitive damages can be particularly harmful in harassment cases when devastating psychological effects are common.¹⁶⁹ Such effects can include suffering from depression, anxiety, stress, post-traumatic stress disorder, suicidal ideations, and adjustment disorders, among others.¹⁷⁰ One study found that nurses who experience sexual harassment are three to eight times more likely to suffer from depression than women who were not harassed.¹⁷¹ These negative mental health outcomes have also been shown to have profound impact on long-term job-related outcomes, including lack of initiative, lower job satisfaction, increased propensity to leave, and financial problems.¹⁷²

In addition, other forms of available relief may not be especially meaningful in harassment cases. Although some employees quit or are fired in connection with workplace harassment, many harassment victims continue to work throughout the abuse, making them ineligible for back pay. Ironically, staying longer and enduring more prolonged harassment and abuse may end up resulting in lower damages. This is particularly problematic for low-wage workers who are economically vulnerable and cannot afford to quit their jobs. Conversely, if the employee was terminated, reinstatement may not be a useful remedy, as the plaintiff may be reluctant to return to an abusive workplace. Compensatory and punitive damages, along with attorneys’ fees and costs, may be the most important forms of relief available to harassment claimants. Yet, damage caps force courts and juries to limit relief to the plaintiffs to whom they might have made a much larger award to compensate for pain and suffering and to punish the employer for maintaining a hostile work environment.¹⁷³

Damage caps also limit access to justice. Because many plaintiff-side lawyers operate on contingency fees, a harassment claimant suing a small or even mid-size employer may have difficulty finding a lawyer willing to sue when the maximum recovery is less than $100 thousand. The effect of damage caps can be especially pronounced for low-wage workers, women of color, and immigrant workers engaged in domestic work or agricultural labor. When the size of recoverable wages is low due to a low base wage, plaintiffs are even more reliant on compensatory and punitive damages to attract the interest of a potential lawyer. Domestic workers, agricultural workers, and even restaurant and food-service workers may find themselves on the low end of the damage caps because they work for smaller operations. In such cases, a worker’s ability to find legal representation may ultimately depend on whether they can allege a separate tort or statutory claim not subject to the damage caps or whether they live in a state that offers more generous discrimination remedies under state law.

Damage caps also reduce deterrent effects on delinquent employers.¹⁷⁴ With minimal penalties, many employers are disincentivized to improve their responses to sexual misconduct in the workplace or to change workplace culture. Once again, vulnerable workers are doubly cursed—their employers know that their workers may not be covered by the statute, and even if they are covered, they may not find an attorney or recover very much. Facing little prospect of a big-ticket lawsuit, employers in these industries can turn a blind eye to harassment with little fear of accountability.

J. Implied Hierarchy of Harassment Claims

Even prior to the #MeToo movement, the dominant narrative surrounding workplace harassment involved a subordinate White woman subjected to unwelcome sexual conduct or requests for sexual favors by a high-ranking White man. This scenario, for example, commonly appeared in early harassment training from the 1980s and 1990s.¹⁷⁵ It was also, to some extent, reflected in the earliest EEOC regulations, which defined harassment in terms of sexual conduct and specifically referenced “quid pro quo” harassment, in which a supervisor requests sexual favors in exchange for some workplace benefit or the avoidance of harm.¹⁷⁶

This frame was not, however, compelled by the case law,¹⁷⁷ and it operates to the disadvantage of all other harassment claims that do not involve sexual conduct or that are brought on the basis of other protected classes. Intersectional claims brought on the basis of more than one protected category—often women of color experiencing racism and sexism—are at particular disadvantage.

Nowhere in the case law does the Supreme Court assert that sexual conduct forms a necessary part of a harassment claim or that certain protected classes are more deserving of relief than others.¹⁷⁸ Nevertheless, the narrative of harassment as primarily a problem of sexual misconduct toward White women has had a measurable effect on lower court jurisprudence over time. This effect is well-documented in scholarly literature. Indeed, Pat Chew and Robert Kelly’s empirical study of harassment claims concluded that judges tend to discount race-based harassment claims.¹⁷⁹ Women of color pursuing litigation are further marginalized due to the courts’ pressure to separate out experiences of harassment into the false dichotomy of “Because of Race” or “Because of Sex,” when these are commonly intertwined.¹⁸⁰ Empirical research has found that plaintiffs bringing intersectional claims are less than half as likely as plaintiffs bringing single claims to win their cases.¹⁸¹ Even within those statistics, Black women are more likely to lose their cases than Black men who bring intersectional claims, such as those based on both race and age.¹⁸²

In summary, harassment law is subject to a variety of gaps that enabled workplace harassment to continue in the decades leading up to the #MeToo movement. Next, we turn to the question of whether the many legislative reforms wrought by the #MeToo movement addressed these gaps.

III. An Empirical Analysis of State and Federal Gender Equity Legislative Activity, 2016–2022

In previous scholarship, we discussed the ability of social movements to promote legal change.¹⁸³ While the window of opportunity may be small, #MeToo, like the mass Black Lives Matter protests during the summer of 2020, has the potential to generate staying power and remain influential on legal policy.¹⁸⁴ This is especially true if lawmakers, courts, and agencies follow the lead of workers who have been organizing for harassment-free workplaces long before #MeToo.¹⁸⁵ Doing so will provide stakeholders an appropriate goalpost that they can measure their efforts against as they attempt to mitigate workplace harassment.

This Article builds on prior work that has begun to investigate the legal implications of #MeToo, but does so with an emphasis on empirical analysis.¹⁸⁶ The questions we explore include: (1) Has #MeToo effectively shifted the law forward in addition to raising awareness and sparking debate? (2) What topics were centered in bills versus introduced as secondary topics within proposed legislation? (3) To what extent did political factors such as state party lines and representation of women lawmakers influence the volume of bills introduced and passed? (4) To what extent did legislators take a comprehensive versus a narrow approach to workplace harassment?

A. Methodology

To examine the actual and potential policy changes following #MeToo, our research team collected a corpus of 3,916 state bills¹⁸⁷ and 255 federal bills relating to workplace gender equity, discrimination, and harassment that were introduced between 2016 and 2022. The corpus was collected through a legislative search of Legiscan, NexisUni, and Westlaw using seventy-five different search terms intended to identify relevant legislation.¹⁸⁸

The search terms were generated to identify a broad range of workplace gender equity legislation rather than more narrowly-focused harassment bills for several reasons. As articulated in Part II, harassment is a complex systemic problem stemming from a variety of social, political, and cultural factors. To the extent legislation helps to address the underlying inequity—such as pay equity—the intervention may ultimately help to reduce harassment indirectly over time.¹⁸⁹ We therefore sought to capture the full range of legislative interventions to enable us to evaluate them collectively. Taking a broader approach to harassment reform also allows us to identify patterns in and across legislative bills, including the extent to which the bills are: (a) individualized, offering siloed remedies for individual cases; (b) institutionalized, delegating responsibility to employer training, policy or practices; or (c) systemic, which are broader in scope and affecting many workers across industries.

The initial corpus contained a substantial number of duplicative bills, typically as a result of near-identical legislation that was introduced separately in both the House of Representatives and the Senate of a particular state legislature. Potential duplicates were flagged manually based on similar or identical bill names, numbers, or descriptions. The textual similarity of potential duplicates were then assessed using the “compare” function in Adobe Acrobat Pro, which counts and highlights all textual differences. Pairs of bills where 80% or more of the text was identical were deemed duplicates, and one copy of the duplicate bill was discarded for the substantive coding and quantitative analysis. The final corpus analyzed herein contained 3,012 state bills and 255 federal bills (“Legislative Corpus”).

We then coded for the substantive topic of the bills pulled into our dataset through the criteria listed in Table 1.¹⁹⁰ Bills fell into one of eleven topic groups, as defined below.

Table 1. State Legislative Topics
Topic	Definition
Transparency	Bills that implement new reporting or recordkeeping on employers regarding harassment or assault, or that restrict the use of non-disclosure provisions in employment contracts or settlement agreements.
Government Officials & Contracts	Bills that regulate the conduct of government officials, lobbyists or government contractors, such as requirements that legislatures adopt harassment policies for members; prohibiting public funds from being used to settle harassment claims; or requiring state contractors to adopt certain employment practices.
Anti-Harassment Practices	Bills that require some or all employers to adopt anti-harassment practices, such as training, policies, notices, or procedures to investigate harassment. Also includes bills that extend unemployment benefits to employees who quit due to harassment.
Anti-Discrimination Law	Bills that extend or expand anti-discrimination protections, such as expanding coverage or adding new protected categories such as sexual orientation, family status, marital status, or victims of domestic violence.
Leave	Bills that mandate paid or unpaid leave or that provide for accommodation for pregnant or nursing mothers.
Pay Equity	Bills that alter legal rules, hiring practices, or compensation practices relating to pay disparities or withholding of promotion or opportunities on the basis of sex, such as equal pay laws, prohibitions on requesting salary history, protection for pay discussions in the workplace, or mandatory pay disclosures.
Occupational	Bills that expand or create legal protections for sectors or occupations that predominantly employ women such as domestic work, hospitality, hotels, and janitorial services.

Enforcement	Bills that alter or expand legal rules or remedies relating to harassment, discrimination, leave/accommodation, equal pay, non-disclosure agreements, private arbitration, or workplace bullying.
Mandatory Arbitration	Bills that attempt to alter the enforceability of private arbitration provisions in employment contracts.
Equal Rights Amendment	Bills that ratify or pass the Equal Rights Amendment.
Other^a	Bills that do not fit into the above categories, many of which are symbolic in nature, such as designating “Equal Pay Day,” establishing commissions or reports. Also includes laws regarding vocational training in non-traditional occupations, and gender diversity in boards of directors.

Note: ^a The bulk of the “Other” category consists of bills that engage with harassment or gender equity symbolically rather than substantively. Examples include bills that create Days or Months to honor gender inequities that other bills in the dataset are seeking to redress. Other bills considered symbolic are those that commission Task Forces or Studies on harassment or gender equity reform more broadly. The rest of the “Other” category were outliers such as grants or vocational training for women in “High-Wage, High-Demand” jobs, regulation on law enforcement and military, and bills requiring the appointment and disclosure of women on boards.

Each bill summary was reviewed and coded by a member of our five-person research team, which included four researchers with a J.D. and an economics Ph.D. fellow. Where the summary was not sufficient to code the bill into one of the above-listed categories, the researcher reviewed the full text of the bill. Bills that fell outside the scope of the study—such as laws relating to cyberbullying, rape kits, or “street harassment”—were removed from the Legislative Corpus.

Many of the bills in the Legislative Corpus were “bundled,” that is, they sometimes included a variety of separate measures.¹⁹¹ Where a given bill covered more than one of the relevant topics, it was coded using a “primary” topic and any additional topics received a “secondary” classification. For example in 2019, the Connecticut legislature introduced a bill that would amend multiple statutes to establish “economic equality for women,” including by requiring equal pay for equal work, increasing the minimum wage, requiring paid family and medical leave, and requiring annual anti-harassment training for companies with fewer than twenty employees among others.¹⁹² Thus, while this bill was coded primarily as a Pay Equity bill, it also was secondarily classified under Anti-Harassment Practices, Leave, and others.

Where bills presented a close case regarding the applicable category, members of the team discussed the bill and made a final decision. Coding decisions were also cross-checked using keyword searches within the Legislative Corpus specific to each subcategory.¹⁹³ Keyword searches within the Legislative Corpus were also used to populate subcategories of bills within the “Enforcement” category relating to harassment law reforms.¹⁹⁴

B. Volume of Gender Equity Legislation Post #MeToo

Federal Reforms

The #MeToo movement produced few legislative successes at the federal level between 2016 and 2022. Although many bills were introduced, few of them passed. By contrast, there has been a massive wave of #MeToo-related legislation at the state level. This flurry of legislative activity took place in statehouses across the country and continued for a sustained period—extending throughout 2022.

In the U.S. Congress, from 2016 to 2022, 255 bills were introduced relating to sexual harassment, sexual assault, and gender equity in employment.¹⁹⁵ There was a sharp rise in bills between 2016 and 2017, from twenty to fifty-nine. Congress continued to introduce legislation at a high rate in 2018 and 2019—reaching thirty-eight bills in 2019. Proposed legislation then dropped sharply in 2020, with five bills introduced that year.

Figure 2. Federal Gender Equity Bills (2016–2022)

At the federal level, only six #MeToo related bills passed during the sample period, and three of those bills are very limited in scope. The most wide-reaching bill was the Ending Force Arbitration of Sexual Assault and Sexual Harassment Act of 2021, discussed in greater detail in Part V.E.¹⁹⁶ In 2022, Congress also passed the Speak Out Act of 2022, which limits the enforceability of non-disclosure and non-disparagement clauses relating to sexual harassment and assault.¹⁹⁷ Another substantive change came from the National Defense Authorization Act for Fiscal Year 2022, which created additional reporting requirements for sexual harassment in the military—an industry at high risk of workplace harassment, among other forms of workplace violence.¹⁹⁸

The remaining laws that passed at the federal level were quite limited in scope. Two such bills related to lawmakers themselves: one mandates anti-harassment training for Senators and Senate employees¹⁹⁹ and the other makes lawmakers financially liable for harassment settlements.²⁰⁰ A third

bill was symbolic in nature, designating April as National Sexual Assault Awareness and Prevention Month.²⁰¹

State Reforms

As aforementioned, the vast majority of harassment and gender equity legislation was introduced and passed by state legislatures rather than Congress. We will begin the state legislation analysis by looking at state-specific and political trends in introduction and passage rates of gender equity bills between 2016 and 2022. We will then take a closer look at the potential for bipartisan support of gender equity bills before moving to topical analysis; there, our goal is primarily to examine how well legislation has been able to fill the gaps in legal protection that leave so many workers vulnerable to harassment and other gender-based workplace harm.

i. General Trends

Broadly speaking, states introduced—and passed—a large number of #MeToo related bills between 2016 and 2022. Since 2016, states introduced approximately 3,000 such bills, of which 382 passed—a passage rate of 12.7%. As Figure 3 illustrates, some amount of gender-related legislative activity predated the viral spread of the #MeToo movement in 2017, with 244 relevant bills introduced in 2016, though only 19 such bills passed. The volume of #MeToo related legislation nearly doubled between 2016 and 2017, with 427 bills introduced, of which 42 passed. Legislative activity continued to rise year over year even after the extensive media coverage faded, peaking in 2019 at 715 bills introduced, of which 96 passed. Legislative activity was somewhat lower between 2020 and 2022 but remained above the 2016 baseline level. These trends suggest that the legislative momentum of the #MeToo movement continued for several years.

Figure 3. State Gender Equity Bills (2016–2022)

There was substantial variation between states in the volume of legislation introduced, as illustrated in Figure 4. The most active state legislatures were New York (340 bills), followed by New Jersey (208 bills), Mississippi (151 bills), California (113 bills), Illinois (112 bills), and West Virginia (112 bills). Other states with a relatively high volumes of legislative activity were not confined to consistently Democratic “blue” states,²⁰² and included “swing”²⁰³ and Republican leading states, including Virginia, Michigan, Minnesota, Pennsylvania, Texas, Hawaii, and Missouri.

However, the states with very little legislative activity—those that introduced ten or fewer #MeToo related bills between 2016 and 2022—were “red” states: Arkansas (four bills), South Dakota (six bills), North Dakota (seven bills), Montana (seven bills), Idaho (nine bills), and Wyoming (ten bills). Nevertheless, the sustained engagement of most states in #MeToo legislation suggests that there was more sustained legislative interest and energy around #MeToo-related gender equity reform than the partisan gridlock in Congress would suggest.

Figure 4 also highlights the years in which bills were introduced in each state, indicated by color within each bar. Although each state had more legislative activity in some years than others, they generally depict some legislative activity during each year in the sample period. This further suggests sustained legislative activity over time, not just across states writ large, but within each state.

The states that passed the most #MeToo related bills were similar—but not identical—to those that introduced the most #MeToo related legislation, with California in the lead (seventy-three bills), followed by Illinois (thirty-one bills), New York (twenty-seven bills), Washington (twenty-five bills), New Jersey (seventeen bills), Virginia and Maryland (fifteen bills each), Nevada (thirteen bills), then Louisiana, Oregon, and Maine (twelve bills each).²⁰⁴

Although blue states dominate the list, the most prolific bill-passing states also included a solidly red state (Louisiana), and two swing states (Nevada and Virginia). The group of states that passed between five and ten bills also included a handful of swing or red states, including Pennsylvania, Texas, Arizona, Tennessee, and Kentucky, each of which passed five bills. Ten states failed to pass any #MeToo bills. Of these, seven were red states, and three were swing states.²⁰⁵ In other words, the volume of bills passed in any given state is somewhat more reflective of the partisan divides between red states and blue states than the volume of bills introduced.

Figure 4. Bills Introduced by State (2016–2022)^a

Note: ^a Only states with at least 20 introduced bills were included in Figure 4.

Figure 5. Bills Passed by State (2016–2022)^a

Note: ^a Only states that passed at least one bill were included Figure 5.

C. Political Trends in Gender Equity Legislation Post #MeToo

Now that we have a sense of the general landscape with respect to state legislation post #MeToo, we can take a closer look at the political trends. While all states introduced some harassment and gender equity reform legislation, there are trends in region, party, and even representation of women in legislatures, that provide information about who is leading the charge with respect to introducing and passing legislation that produces effective change.

Political Party

Figure 6 presents a more direct breakdown of the relationship between partisanship and #MeToo legislation. Throughout much of the sample period, more #MeToo-related bills were introduced in Republican-led legislatures, relative to Democrat-led legislatures.²⁰⁶ However, Democratic legislatures passed far more bills than Republican-led legislatures by a margin of 3.6 to 1. These results suggest that there was substantial legislative interest in #MeToo related topics in both Republican and Democratic state legislatures—and perhaps even a greater level of experimentation in Republican legislatures—but far less momentum to pass those bills in Republican states.

Figure 6. Bills Introduced and Passed by Party Majority and Year

a. Introduced bills

b. Passed bills

Note: ^aThis figure does not include seven laws introduced in Alaska that had “N/A” for party majority

Representation of Women Lawmakers

Part I discussed the historical exclusion and underrepresentation of women and racialized minorities in the lawmaking process. From 2016 to 2021, as the conversation around #MeToo and gender equity broadened, the percentage of women in state legislatures grew to record numbers in many states.²⁰⁷

Figure 7. Percent of State Legislators Who Are Women, 2012–2021

We next analyzed the relationship between the average representation of women in each state legislature from 2016 to 2022, and the volume of gender equity legislation the state passed during that same period. The results suggest that states with more women lawmakers tended to pass more gender equity legislation in the years following #MeToo than states with fewer women lawmakers.²⁰⁸

Most states tended to cluster together along party lines. For example, traditionally red states including West Virginia, Wyoming, Alabama, and South Carolina had state legislatures with less than 20% of women lawmakers and also passed less than ten gender equity bills between 2016 and 2022. By contrast, Democratic strongholds such as Illinois, New York, and Washington had legislatures with between 30% and 40% women lawmakers, as well as over twenty gender equity bills passed in each of these states between 2016 and 2022. This suggests that Democratic states may be leading the way with respect to maximizing anti-discrimination legislation put forth—in line with the Swiss Cheese Model of risk reduction. However, the substance of the bills passed is another critical part of the analysis.

Figure 8. Frequency of Gender Equity Legislation Passed, by Mean % Women Lawmakers, 2016–2022

D. Topical Analysis of Gender Equity Legislation Post #MeToo

This Section takes a closer look at the types of bill topics introduced or passed and examines whether the activity was responsive to the gaps in protection previously identified in Parts I and II. We found that states attempted to pass a variety of legislative measures on a number of topics related to gender equity and workplace harassment. The breadth of introduced bill topics is promising, as it suggests legislators are open to taking a multi-layered approach to increasing protection and minimizing harassment—especially in industries at particular risk.

Figures 9 and 10 display the introduced and passed bills according to the topic of the legislation. As Figure 9 illustrates, pay equity was the most common topic of proposed legislation, with more than 700 bills introduced. Leave laws were the second most common topic, with 582 bills proposed. Enforcement bills—which included a variety of reforms to strengthen protections by changing legal rules and remedies—were the third most prevalent, with 376 bills. Laws mandating changes to employer practices and policies (“Anti-Harassment Practices”), such as harassment training and grievance procedures, came in fourth, with 332 bills.

The topics most commonly passed in the legislature did not correspond to the topics that were most frequently introduced. The most commonly passed topic was “Other,” which predominantly consisted of symbolic legislation, such as designating an “Equal Pay Day,” expressing a policy position, or establishing a task force. The second most commonly passed topic was laws relating to Anti-Harassment Practices, closely followed by laws relating to Pay Equity.

Figure 9. Number of State Gender Equity Bills, By Primary Topic

The volume of bills introduced on specific topics could ultimately be viewed as a proxy for broad legislative interest in a topic, with pay equity and leave garnering the most interest. Legislative volume may also be an indicator of legislative creativity and innovation around a particular topic. Pay Equity bills in particular produced a wide variety of proposals to address the underlying problem, ranging from pay disclosure rules, protection from retaliation, new forms of equal pay mandates, or restrictions on the types of information employers can use to calculate pay rates. Republican led states were often as creative in this regard as Democratic ones.

For example, West Virginia introduced a bill entitled the “Katherine Johnson Fair Pay Act of 2019” in honor of Katherine Coleman Johnson, an African American mathematician born and educated in West Virginia.²⁰⁹ She was awarded the Presidential Medal of Freedom despite facing segregation and wage discrimination along with the rest of her Black female crew. The bill would prohibit an employer from (1) banning pay discussion in the workplace formally through waiver or informally and (2) inquiring about prospective employees’ wage or salary history.²¹⁰ Utah and Wyoming also took steps to bolster equal pay protections; in 2016 and 2019, respectively, both states passed legislation increasing fines for employers and legal remedies for victims of wage discrimination.²¹¹

Many states also used a bundling approach, by adding in additional topics that were “secondary” to a primary bill topic.²¹² Once secondary topics are included, the “Other” category remains the most commonly passed topic. However, other types of reforms received a substantial boost by including “secondary” topic codes, particularly the “Enforcement” category, which rises to second place when secondary topics are included. Likewise, anti-discrimination law reforms were much more frequent when adding analysis of secondary topics. This suggests that legislators are strategizing—proposing a bill on a primary topic, such as pay equity, that may garner wider support, and then in the same bill, adding other protections that are less likely to be presented and supported in standalone bills.

These secondary “hidden” topics are of note because they tend to add substance to bills that may otherwise lack the ability to promote effective change. We measure the effectiveness of a bill by assessing its ability to fill at least one of the many gaps identified in harassment and anti-discrimination law. The ability to fill these “holes,” to use the Swiss Cheese Model analogy, indicates an appropriate focus on how harassment and other gender inequities in the workplace are actually experienced by today’s most vulnerable workers. For example, many of the workers most vulnerable to harassment also have extremely limited economic bargaining power due to various factors including the racial and gender pay gap. To bolster these workers’ ability to fight existing wage discrimination, many state legislators added a cause of action into pay equity reform bills that would have otherwise lacked an enforcement mechanism that allowed workers to take their claims in court.

Figure 10. Total Number of State Gender Equity Bills Passed, By Topic

Secondary topics were a common feature of the dataset: almost 40% of bills had one or more secondary topics.²¹³ The most common topic bundle combined Pay Equity and Enforcement (307 bills), followed by Leave and Enforcement (200 bills). This bundle tended to reflect that new leave or pay equity laws were typically more substantive in nature and drafted with some sort of enforcement remedy beyond fines for employer violations—thereby increasing workers’ access to courts. For example, in 2016, even before the #MeToo activism, California passed an Equal Pay for Equal Work bill that was both systemic and substantive and included a bundle of enhanced protections.²¹⁴ This new law prohibits wage discrimination, creates a cause of action for employees aggrieved by wage discrimination, and prohibits retaliation against employees seeking enforcement of the law.²¹⁵

Table 2 also reveals less intuitive combinations, such as bundling Anti-Discrimination Law along with other bill topics. One example of this strategy comes from New York, where the 2020 legislature introduced an extensive bill that bolstered discrimination and harassment enforcement remedies and expanded protected classes to include individuals experiencing these harms on the basis of their sexual orientation and gender identity, marital status, familial status, and more.²¹⁶ This strategy was also adopted in many Leave laws, which were frequently accompanied by reforms to Anti-Discrimination Law (seventy-five bills). Pay Equity was also commonly paired with reforms to Anti-Discrimination Law (forty-one bills). This bundled approach may have served as an effective strategy to effect systemic broadening of statutory protection without attracting undue attention and opposition.

Indeed, it appears that strategically “bundling” topics increased the ability of legislatures to pass reforms that either (1) create or strengthen a variety of enforcement mechanisms for harassment and other gender equity claims, or (2) broaden coverage under anti-discrimination statutes. Although standalone bills involving these reforms had less success, legislators appear to have successfully tacked them on to bills involving other subjects.

Table 2. Common Bundles of Workplace Gender Equity Topics
Primary topic	Secondary topic
Primary topic	Anti-Discrimination Law	Anti-Harassment Practices	Enforcement	Anti-Discrimination Law	Anti-Harassment Practices	Mandatory Arbitration	Anti-Discrimination Law	Anti-Harassment Practices	Pay Equity	Anti-Discrimination Law
Anti-Discrim. Law		5	60	21	10		1	2	3	1
Anti-Harassment Practices	25		29	11	2	4	9	13		37
Enforcement	25	12		5	12		3	4	6	9
Govt. Officials and Contracts	8	58	11		1			1	1	19
Leave	75		200				18	6	2	27
Mandatory Arbitration	2	3	20	10				1		12
Occupational	1	12	12		3				1	5
Other	7	8	3	1	7			16		8
Pay Equity	41	1	307	47	17		22	51		54
Transparency	6	10	36	28	1	14	8	2	1

Reform initiatives that aim to strengthen enforcement mechanisms and broaden coverage under Title VII to protect more workers are essential because they increase access to the courts. Reform will not reduce the prevalence of harassment and other gender inequities if impacted workers are unable have their claim addressed by the court system. It is also true, however, that the judiciary needs reform itself, particularly with respect to its interpretation of the severe or pervasive standard, the objectively hostile standard, the Faragher/Ellerth defense, and retaliation. Until the judiciary is more in touch with the realities of the workplace, it is unclear how well this new wave of workers with access to the courts will fare.

Progressive coastal states such as California and New York provide examples of legislative agendas that substantially shift how workplace harassment is conceptualized by courts.²¹⁷ This legislation attempts to remedy some of the shortcomings in harassment jurisprudence discussed in Part II.²¹⁸ Both of these states also amended laws to expand protections for harassment and discrimination to include more protected categories as well.²¹⁹

Some states also improve enforcement by extending the administrative filing period of harassment and discrimination claims. Five states (California, Connecticut, Maryland, New York, and Oregon) extended the administrative filing deadline.²²⁰ Of these, three states extended the deadline for all discrimination claims.²²¹ This is particularly important for low-wage workers, for whom inadequate filing deadlines exacerbate existing pressure to use limited time and resources to at once both find a job and seek legal recourse for harm suffered.

A relatively small number of bills sought to increase the damages available in harassment claims. These bills were also somewhat successful, with four states—Virginia, Nevada, New York, and Connecticut—increasing available damages. Many—but not all—who passed bills did so by (1) allowing the discrimination plaintiffs to recover both compensatory and punitive damages and (2) removing damage caps for victims of discrimination based on employer size. In some states—such as Nevada—damage caps remain, limiting the impact of recent increases in available damages.²²²

IV. Discussion & Implications

When analyzing the legislative activity over time, we found that proposed bills began to address a wider range of systemic gender equity issues over the time period;²²³ however, as with many movements, reform efforts gradually fizzled out over time. Importantly, however, they never returned below the 2016 baseline activity. These empirical results suggest that while the #MeToo movement may have sustained some of its initial impact on harassment and gender equity reform over the past five years, progress may be stagnating. Avoiding further stagnation requires legal stakeholders to offer workers consistent harassment and gender equity reform that are responsive to the changing realities of the current workplace. This includes acting swiftly to respond to the 2025 Trump administration’s attempts to reverse harassment-related protections for transgender workers under Title VII.²²⁴

A. Did States Fill Any Gaps?

State legislation partially filled gaps left by federal law. While state legislators took a broad approach to introducing harassment and gender equity reform, they took a narrower approach to amending harassment law. While we did see efforts to combat noted gaps in protection such as mandatory arbitration at both the state–and even federal level–these efforts are typically limited to banning mandatory arbitration of sexual harassment claims—leaving harassment on other bases, as well as other discrimination claims, unprotected. This creates challenges for the plaintiffs experiencing harassment based on multiple categories or those experiencing both discrimination and harassment, which often occur together.

At the same time, state legislatures seriously attempted—and, in many cases, succeeded—in expanding the list of protected classes protected by anti-discrimination law. For example, some states have expanded protections to cover workers excluded from Title VII coverage, such as those working for small employers, independent contractors, and unpaid interns, among many others.²²⁵ Some have also expanded liability and remedies for harassment by removing Title VII’s affirmative defense against harassment as well as its caps on compensatory and punitive damages for victims of harassment.²²⁶

The most unexpected finding came from the Enforcement bill category. Enforcement was the third most introduced bill topic, suggesting stronger legislative support than expected. Moreover, when we considered secondary topics, the number of Enforcement bills nearly doubled. This suggests a strategy among state legislators to increase access to the courts and to strengthen relief available for harassment and gender equity issues, including pay equity, leave and accommodation, and anti-discrimination law. As a result, there will likely be an influx of the new plaintiffs who are able to have their day in state court. While this is generally good news, it also highlights the continuing and glaring failure of the judiciary to remedy the harassment that is experienced and brought before the courts. Expanding coverage to additional workers and increasing their access to the courts will only work if they are encountering a judiciary that is responsive to power hierarchies and realities of the workplace, while also being serious about curtailing harassment. It is clear that there is still work to be done in this respect, and we look forward to conducting further research examining the topical granularity of the Enforcement bills in our database and how future clams fare in court.

On the federal level, several bills failed in their attempt to remedy the judicially created harassment doctrine outlined in Part II. House Bill 8698, for example, introduced in October 2020, sought to amend Title VII to overturn Supreme Court jurisprudence that is unfavorable to victims of harassment, including Alexander v. Sandoval,²²⁷ Vance v. Ball State,²²⁸ and Faragher/Ellerth.²²⁹ This bill would enhance enforcement by allowing the plaintiffs to sue under Title VII based on evidence of disparate impact, strengthening the plaintiff’s ability to sue under a theory of vicarious liability, and reducing the likelihood of judicial deference to employer anti-harassment policies and procedures, despite ineffectiveness.²³⁰ The bill also created a broader exception to the Federal Arbitration Act for all employment-related rights and remedies under federal and state law, not just sexual harassment.²³¹ It would also have expanded available remedies by allowing the plaintiffs to collect pre-trial attorney’s fees.²³² House Bill 8698 would prohibit employment discrimination on the basis of sexual orientation and gender identity,²³³ a proposal that was ultimately rendered moot by the Supreme Court’s 2020 decision in Bostock v. Clayton.²³⁴

Knowing the effect of the #MeToo movement on legislative agendas and bill passage rates is important for those who wish to maintain and expand the momentum that was fueled and, in some cases, created by these movements. More specifically, legislators and other legal decisionmakers, including the courts and government agencies, should make workers’ voices central to their work. Following the lead of worker organizers whose anti-harassment advocacy efforts predated the groundswell of attention brought by the #MeToo movement will not only bring consistency, but also timeliness and specificity to the anti-harassment agendas set by various legal stakeholders. Below, we outline four specific issues that we believe should be central to advocacy efforts in particular, due to their deleterious effects on workers most vulnerable to workplace harassment.

B. Legal Gaps in Need of Greater Attention

While the past five years following the #MeToo movement have seen reforms that were more systemic and bipartisan than anticipated, major gaps persist, allowing harassment to remain a threat. Harassment and gender equity reform is particularly in need of (1) more systemic changes with greater oversight, transparency, and accountability, (2) greater focus on intersectional harms, (3) well-informed enforcement efforts by judges, attorneys, and agencies alike, and (4) more creative strategies to deal with retaliation.

Symbolic Action and Individuation of Harassment Continues, and Even Worsens?

Our analysis revealed a substantial number of reforms that were symbolic in nature, which encourages institutional “window dressing,” to merely signal enhanced rights, but without effective policies or cultural shifts.²³⁵ Some states created days of honor or remembrance, without adding substance of additional protections or enforcement, which we do not expect to make a meaningful difference beyond raising public awareness about harassment and other gender equity issues. Others condoned behavior of a government official or stated policy support for an issue, without actually making changes that change circumstances for women on the ground. Many states also created task forces and commissions to study issues of harassment and gender equity, but subsequent legislation would be needed to effectuate any changes proposed by these groups. Symbolic reforms may even be counterproductive to the extent they “check the box” by passing a related bill, creating the appearance of having addressed the problem. This can provide political cover while failing to implement more meaningful systemic reform.

Even more troubling is the continuing popularity of bills imposing harassment training requirements. While these bills can have substantive impact, research has shown that unless certain conditions—such as transformative leadership or bystander-specific training—are met, trainings are likely to be ineffective at promoting changes in workplace behavior. Moreover, training requirements can even be counterproductive. Legal stakeholders, thus, need to be aware of how training requirements tend to individuate harassment, making it about individual perpetrators rather than broader shifts in workplace culture, power dynamics, and worker dignity that are required. Training, grievance procedures, and investigations that focus on damage control may obscure the systemic patterns so often present in harassment and discrimination cases. In the current landscape, given the central role of the Faragher/Ellerth defense, these employer practices and procedures do more to insulate the employer from liability than they do to mitigate workers’ risk of harassment or other gender-based harms.

Greater Focus on Intersectional Harms

Congress and state legislatures can, and should, also introduce more legislation protecting specific industries where women of color are overrepresented. This includes not only domestic workers, but also independent contractors, farmworkers, healthcare, hospitality, retail, and restaurant workers.²³⁶ Although state legislatures have stepped up to fill substantial federal gaps in coverage post #MeToo, barriers to enforcement remain and limit potential impact. To be effective, more systemic reform efforts are required that go beyond harassment law to also broaden protections across legal doctrines to the benefit of all women workers. This means, in particular, supporting state and federal legislative agendas that close gaps for the most vulnerable women workers, including low-wage workers, women of color, workers with disabilities, and LGBTQIA+ workers.

Importantly, this requires moving away from the narrow interpretation of sexual harassment by judicial precedent and envisioning a new legal agenda around gender equity reform that is responsive to the reality of our evolving workplace and society. Doing so will require not only our policymakers, but also agencies and courts, to internalize gender inequity—rather than sexual desire—as the foundation of workplace harassment, highlight how it is exacerbated by low-wage employment, and acknowledge how its impact, in many cases, compounds for women with additional protected characteristics, in precarious work, segregated working conditions, and occupationally isolating jobs.²³⁷

Navigating an Employer-Friendly Judiciary

As aforementioned, our legislative analysis suggests that plaintiffs will have greater access to the courts in the near future; however, we must further question and examine what that means if the judiciary continues to constrain harassment law and gender equity doctrine. This is a key moment for employment and civil rights lawyers to advocate effectively for their clients and in doing so, set new precedents, for the court. Doctrinal areas in need of innovation include the “severe and pervasive” requirement, the “objectively” hostile or abusive standard, and the Faragher/Ellerth affirmative defense.

Dealing with Retaliation is Required for Reforms to Work

Strengthening judicial enforcement is also important in the context of retaliation, which continues to go hand in hand with harassment. Despite high rates of retaliation and its role in deterring victims from speaking up and using existing protections, state legislative agendas failed to pass measures that would more effectively deal with this issue. Solving the problem of retaliation requires more than changes to anti-retaliation laws; it also requires stronger enforcement that would incentivize systemic changes to workplace culture. In addition to legislation strengthening anti-retaliation protections generally, more bills should focus on identifying and mandating what specific behaviors are considered retaliatory. These reforms could include retaliatory actions such as substantive changes to terms of employment, disclosing personnel files, contacting immigration authorities, or threatening to report an employee’s immigration status.²³⁸ Doing so would signal the legislature’s recognition that retaliation is rooted in systemic power imbalances and is particularly threatening for workers in low-wage industries or workers with intersectional identities including race and national origin.

Conclusion

Considerable legislative progress has been made in the first five years after #MeToo went viral. Overall, more harassment and gender equity reform has occurred than expected, and through a more varied and comprehensive approach than first predicted. This is particularly true at the state level where new laws also offer greater coverage and enforcement remedies under civil rights statutes regardless of worker classification and with consideration for their occupational hazards and intersectional vulnerabilities.

While it is clear that the #MeToo movement moved the law forward with respect to harassment and gender equity, more work needs to be done, particularly with respect to centering the interests of workers most vulnerable to harassment. Various institutions–including judges, lawmakers, and agencies–contributed to the dissonance between the legal enforcement of, and the realized experience of, workplace harassment. This dissonance is then distributed widely via media, leading to public apathy and confusion about the current landscape of workplace harassment and related gender equity issues. These legal stakeholders thus have a responsibility to ensure that access to justice is equitably and consistently distributed to all workers, especially those most vulnerable. Fulfilling this responsibility grows more

urgent everyday under an increasingly hostile second-term Trump administration.

This does not mean, however, that effective and responsive reform efforts are out of reach. Legislators and regulators alike should consult anti-harassment worker organizers in crafting future reform. Doing so will enable legal branches to establish greater consistency in their treatment of harassment and remain more up to date with the rapidly changing realities of workplace harassment. This, in turn, will have the desired effect of closing the gaps between how harassment is enforced on the books, how it is enforced in the workplace, and how it is experienced by working women.

Federal actors should also make fruitful use of state-level innovation to ensure that state-level successes achieve a broader impact. Now that states have provided evidence of bipartisan support for these issues, Congress and federal agencies including the EEOC, the Department of Health and Human Services, and even the Occupation Safety and Health Administration, should step in and offer a more systemic approach that covers the multitude of gender equity issues that contribute to harassment.

Lastly, our goal is for our dataset to be used as a public resource, from which further research can be developed with the hope of providing concrete findings regarding the effectiveness of state-specific harassment and gender equity legislation. In turn, this research can be used to bolster the advocacy efforts by worker organizers. Doing so will enable legal stakeholders to remain in conversation with those best situated to determine the needs of a given workplace with respect to preventing harassment: the workers themselves.

Appendix A. Search Terms Used to Identify #MeToo Related Legislation
Abusive Work Environment	Gender	Pay Parity	Sexual Orientation
anti-SLAPP	Gender Expression	Predispute Arbitration	Sexual penetration
Antidiscrimination	Gender Identity	Pregnant Workers	Sexual Violence
Compensation History	Gender Representation	Public Right to Know	Sodomy
Confidentiality Agreement	Gratuities	Rape	Stalking
Confidentiality Clause	Harassment	Retaliation	Statute of Limitations
Confidentiality Provision	Harassment Complaints	Salary Experience	Statutory Right
Cyberbullying	Harassment Prevention	Salary History	Unauthorized Disclosure
Denim Day	NDA	Sex	Wage Disclosure
Discrimination	Non-biased Compensation	Sexual Abuse	Wage Discrimination
Discrimination Complaints	Non-consensual	Sexual Arousal	Wage Disparities
Domestic Violence	Nonconsensual dissemination	Sexual Assault	Wage Disparity
Equal Pay	Nondisclosure Agreement	Sexual Assault Awareness	Wage History
Equal Rights	Nondisparagement Agreement	Sexual battery	Wage Secrecy
Equal Rights	Paid Family Leave	Sexual Discrimination	Workplace Bullying
Equal Rights Amendment	Panic Button	Sexual Gratification	Workplace Climate
Ethics Violation	Panic Device	Sexual Harassment	Workplace Misconduct
Family Leave	Pay Disparity	Sexual Intimidation	Workplace Protections
Forced Arbitration	Pay Equity	Sexual Misconduct

Appendix B. Search Terms Used on Bill Corpus to Verify Topic Coding
Topic	Search Terms
Anti-Discrimination	“gender identity” “gender expression” “sexual orientation” “pregnan” “famil* status” “marital status” “famil* responsibility”
Equal Rights Amendment	“equal rights amendment” “ratification”
Harassment Training/Policies/Procedures	“sexual harassment training” “sexual harassment prevention” “complaint process” and “complaint procedure”
Leave/Accommodation	“paid family leave” “safe” “paid sick leave” “domestic violence” “accommodation” “pregnan*” “adoption” and “foster”
Mandatory Arbitration	“mandatory arbitration” “forced arbitration” “arbitration agreement”
Occupational Protections	“domestic” “hotel” “farm” “janitor” “artist” “panic” “bill of rights” “entertainment” “gratuit*”
Pay Equity	“wage discrimination” “pay dispar” “equal pay for equal work” “equal pay” “salary history” “wage history” and “pay equity”
Enforcement	“severe” “pervasive” “statute of limitations” “punitive damages” “compensatory damages” “damages” and “tort”
Regulates Government Officials/Lobbyists/State Contractors	“lobbyist” “state contract” “legislator” “members of the legislature” “legislative staff” “public officials” and “expel”
Transparency/NDAs	“disclosure” “employment history” “non-disclosure agreement” and “nondisclosure agreement”
Other	“task force” “study” “high-wage, high-demand” “law enforcement” and “boards”

98 S. Cal. L. Rev. 761

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Jamillah Bowman Williams*

* Professor of Law & Faculty Director, Workers’ Rights Institute, Georgetown University Law Center; B.S. 2003, Georgetown University McDonough School of Business; M.A. 2005, University of Michigan; Ph.D. 2013, Stanford University; J.D. 2011, Stanford Law School. Thank you to Angelica Sanchez Diaz, Nick Gonzales, Keniece Gray, and Lolade Akintunde for research support. Thank you to participants at the Lutie Lytle Workshop for providing valuable feedback.

Elizabeth C. Tippett†

Professor of Law & James O. & Alfred T. Goodwin Senior Fellow, University of Oregon School of Law; B.A., 2002, Harvard College; J.D. 2006, Harvard Law School.

Anu Ramdin‡

Research Fellow, Georgetown University Law Center; B.A. 2018, University of Miami; J.D. 2022, University of California, Berkeley School of Law.

Familial DNA and Due Process for Innocents

July 2025July 2025Erin Sheley*

Ever since genealogical DNA unmasked the Golden State Killer in 2018, the use of this new forensic science has been ubiquitous. Police have solved several hundred cold cases by uploading unidentified crime scene DNA samples to consumer genealogical databases and, with expert assistance, building out family trees from the resulting matches to identify suspects. This practice has raised significant concerns among privacy scholars due to the intimate nature of DNA information and the lack of consent by the parties ultimately identified through their relatives’ choice to upload data. Critics argue that the Fourth Amendment bars law enforcement from running warrantless familial DNA searches using consumer databases, even among users who have given their consent. Several states have also passed legislation banning or severely restricting such searches.

This Article argues that the current debate around familial DNA has neglected the due process rights of another person: the innocent third party who is potentially convicted in the absence of accurate, exculpatory DNA evidence. Both the Compulsory Process and Due Process Clauses give a defendant the right to obtain exculpatory evidence in their defense through judicial subpoena and from the government itself under Brady doctrine. In close cases, the respective scopes of competing constitutional rights should be defined so as to not excessively burden one another. On that basis, this Article argues against any ban on, or categorical constitutional or statutory rule requiring, probable cause for law enforcement to conduct familial DNA searches. The privacy interests raised by critics are legitimate; yet the functional inability for law enforcement to identify unknown suspects due to the lack of probable cause disproportionately burdens defendants whose Compulsory Process and Due Process rights are already limited by existing materiality requirements and inadequate resources. For many innocent defendants, the State itself is the best and only source of investigative resources and potentially exonerating evidence.

Introduction

In 2019, after Christopher Tapp had served nearly twenty years of a sentence for the rape and murder of his eighteen-year-old friend Angie Dodge, his conviction was vacated.¹ An Idaho jury convicted him in 1998 largely due to a series of interrogations during which the police attempted to get him to implicate various friends, including through the offer of an immunity deal, which was later withdrawn when it was discovered that one friend had an alibi.² During questioning, police—including a former guidance counselor of Tapp’s, whom he personally trusted—threatened him with the death penalty and told him that he could not remember the murder because he was repressing it.³ Tapp was convicted despite DNA tests that had excluded both him and the initially-targeted friend as the source of semen found at the scene of the crime.⁴

A decade after the conviction, the Idaho Innocence Project took up Tapp’s case and requested DNA testing on hairs found on the victim’s body, which had only been visually inspected previously.⁵ The FBI lab found that the DNA on the hair was consistent with that of the semen, meaning that the hair also excluded Tapp. In rejecting Tapp’s lawyers’ requests for further testing, an appeals judge found that “while DNA testing may be relevant in identifying one of the assailants, such does not make it more probable that Tapp is innocent.”⁶

Ultimately, the Idaho Falls police—now with the public support of the victim’s mother—worked with the Innocence Project and the private company Parabon Nanolabs to identify the source of the DNA sample.⁷ Parabon created a genetic profile from the sample and compared it with profiles submitted to various consumer ancestry databases.⁸ Starting with profiles in the database, Parabon was able to use other records to build a family tree that turned out to include a man named Brian Dripps, who had lived across the street from the victim and had even been questioned during the early investigation.⁹ Using a discarded cigarette butt collected by the Idaho Falls police, Parabon compared Dripps’s DNA with the sample from the crime scene and was able to identify Dripps as the source of the DNA.¹⁰ Dripps confessed to the murder and rape, saying that he had acted alone and did not even know Tapp.¹¹ Christopher Tapp’s two-decade nightmare was over.

Tapp’s case was at the vanguard of the latest development in forensic science: law enforcement use of familial DNA mapping to identify crime scene samples against the profiles voluntarily uploaded by perpetrators’ relatives to direct-to-consumer (“DTC”) genealogical sites. Starting with the apprehension of California’s infamous Golden State Killer in 2018, familial DNA has been responsible for the police solving a series of high-profile crimes in recent years, including the 1981 New Hampshire murder of Laura Kempton by Ronney James Lee; the 1984 murder of fourteen-year-old Wendy Jerome by Timothy Williams in Rochester, New York; and Sherri Papini’s false claims of kidnapping and sex trafficking by fictitious Latina women in Shasta County, California in 2016.¹²

While law enforcement use of DTC databases has brought resolution to many cases, it has also been the source of significant consternation among privacy advocates and scholars. At the start of the DTC revolution, users were not necessarily aware that law enforcement might be able to access their DNA profiles.¹³ In the current moment, even the most law-enforcement-friendly DTC companies explicitly allow users to “opt in” or “opt out” of sharing their information with police.¹⁴ Even so, many argue that such consent should not include third-party relatives eventually identified through genetic genealogy because these relatives have no control over whether their family members have uploaded their own DNA to a DTC site.¹⁵ As states have begun to regulate in this area, many have explicitly allowed for police access to DTC sites.¹⁶ However, several states have passed statutes restricting law enforcement use of familial DNA. The District of Columbia and Maryland wholly ban familial DNA searches of police databases; in Maryland’s case, the ban extends even to searches by private citizens (and, thus, criminal defendants).¹⁷ Montana, meanwhile, prohibits police from conducting familial DNA analysis using either DTC or police DNA databases without probable cause, which may be very difficult to establish in many cases involving an unidentified sample.¹⁸

The constitutionality of familial DNA searches is governed by the Supreme Court’s most recent word on the Fourth Amendment in an era of evolving technology—Carpenter v. United States.¹⁹ Carpenter invalidated the government’s use of a subpoena (rather than a warrant) to access a subject’s cell phone location data from their service provider, a practice it had previously justified under the “third-party doctrine” of the Fourth Amendment.²⁰ The Court held that a person has a reasonable expectation of privacy in the totality of their movements, and that, because carrying a cell phone is effectively involuntary in the modern age, such an expectation is not defeated by the fact that a user’s location data is shared with third-party service providers.²¹ Critics of unfettered law enforcement access to DTC DNA databases and of familial DNA searches generally point to the increasing ubiquity of both public and private databases and the large number of strangers who can be involuntarily identified through a fairly small number of users.²² They argue that a person has a reasonable expectation of privacy in their DNA against such non-consensual, indirect identification.²³

This Article is the first to examine this question with regard to a forgotten constitutional stakeholder: the potentially innocent “other” suspect who, like Christopher Tapp, familial DNA might exonerate. While critics on both sides tend to balance the privacy rights of targeted parties against the crime-solving interests of the government, the constitutional framework is more complicated than this given the due process rights of these potential defendants. In Part One, this Article explains the science of forensic DNA generally, familial DNA specifically, and their roles in investigations and exonerations. Part Two presents the Fourth Amendment background to this problem and summarizes the argument that courts should recognize a reasonable expectation of privacy that would prohibit warrantless familial DNA searches, even where DTC users give consent. Part Two also asserts that while this argument is colorable, it is weak. This is due to both standing problems and the fact that the privacy interest in not being identified as the specific depositor of a single DNA sample is not comparable to the interest in the privacy of one’s daily movements.

Part Three argues that a falsely accused suspect has a similarly colorable due process right in the availability of familial DNA testing. Such a right derives from three sources: the Compulsory Process Clause, the due process right to exculpatory evidence, and the due process right to post-conviction relief procedures. This Part argues both that defendants themselves should not be legally barred from running familial DNA searches in public or private databases and that the practical realization of their due process rights requires that law enforcement not be so barred either. Part Four concludes that, in close cases, competing constitutional rights must not excessively burden one another. On that basis, this Part argues against any categorical rule substantially preventing law enforcement from conducting familial DNA searches. While legislatures are well-advised to limit the use of this technology to serious cases in which other investigative techniques have failed, they should not adopt bans or probable cause requirements; if they do, they should at least create an explicit process for defense subpoenas. Furthermore, Part Four concludes that courts should not extend Carpenter to create a categorical warrant requirement for familial DNA searches of police databases or DTC databases where an initial user has given consent to law enforcement access.

I. The Developing Practice of Forensic DNA

A. DNA Science

Deoxyribonucleic acid (“DNA”) is a molecule found in cells that contains the genetic code for an organism’s development, function, growth, and reproduction.²⁴ DNA is hereditary, meaning it is passed from parent to child.²⁵ The information in DNA is stored as a code made up of four chemical bases: adenine (“A”), guanine (“G”), cytosine (“C”), and thymine (“T”).²⁶ Human DNA consists of about three billion bases and more than 99% of those bases are identical across the species.²⁷ Their sequence determines the information available for building and maintaining the organism.²⁸

Variations in code can occur at any point in the genome, including non-coding areas.²⁹ Scientists have discovered that these non-coding regions contain repeated units of DNA that vary in length between individual subjects; one particular type of repeat, the short tandem repeat (“STR”), is easily measured and compared for identification purposes.³⁰ The FBI has identified thirteen areas, or “loci,” on a chromosome where STRs are found, which U.S. law enforcement now uses to identify individuals—for example, to identify remains, determine paternity, or match a suspect to a forensic sample from a crime scene.³¹

DNA identification involves the use of statistics.³² The FBI has established the frequency with which each form, or “allele,” of the thirteen core STRs naturally occurs in people of different ethnicities.³³ In a specific case, a lab will determine the allele profile of the thirteen core STRs for both the crime scene sample and the suspect’s sample. If they do not match, the suspect is excluded.³⁴ If they have matching alleles at all thirteen STRs, it then becomes possible to make a statistical calculation to determine the frequency with which that genotype arises in the population.³⁵ The probability, for example, of two unrelated Caucasians having identical DNA “fingerprints” is about 1 in 575 trillion.³⁶ Because there are 5,000 trillion pairs of people out of the 100 million Caucasians in the world, roughly eight or nine pairs would be expected to match at the thirteen STR loci.³⁷

Given the exceedingly low likelihood of any given person matching the DNA profile associated with a crime scene, the probabilistic science of DNA has generated some of the most reliable evidence known to our justice system.³⁸ This does not mean that it is always perfect evidence. DNA samples may be small in quantity, improperly preserved, or highly degraded (meaning that analysts can only obtain a partial profile).³⁹ Furthermore, some crime scene samples contain DNA from multiple sources. All of these issues can confound the effectiveness of DNA fingerprinting as a means of identification. However, in cases in which all thirteen STR loci can be examined and matched, such matches are extraordinarily reliable.⁴⁰

The use of DNA science in crime solving has been facilitated by the rise of DNA databases maintained by law enforcement. The DNA profiles in these databases come primarily from two sources: (1) DNA samples taken from crime scenes where they can be obtained (for example, “rape kits”) and (2) samples taken from convicted offenders and, in some states, arrestees. All fifty states statutorily require at least some offenders, especially those convicted of sexual or violent crimes, to submit samples.⁴¹ In addition, thirty states statutorily authorize law enforcement to collect DNA samples from those arrested for certain types of crimes, usually felonies.⁴² The FBI maintains the Combined DNA Index System (“CODIS”), a program of support for law enforcement DNA databases nationwide.⁴³ It includes the National DNA Index System (“NDIS”), which contains the DNA profiles contributed by federal, state, and local participating forensic laboratories.⁴⁴ As of February 2024, CODIS had assisted in over 680,122 criminal investigations.⁴⁵ One study of Danish data found that police collection of criminal offenders’ DNA profiles increases detection probability and reduces recidivism rates over the next year by as much as 43%.⁴⁶

B. DNA and Exonerations

One of the most important developments flowing from the rise of DNA evidence since the mid-1990s has been its potential for exonerating the wrongfully accused and convicted.⁴⁷ A 1996 study found that as many as 25% of the cases sent for DNA analysis in the early days of the technology ended up excluding the primary suspect, demonstrating the significance of DNA technology in avoiding potential wrongful convictions.⁴⁸ Between 1989 and 2020, the Innocence Project reports that 375 wrongfully convicted prisoners were freed due to post-conviction DNA testing.⁴⁹ This is, unfortunately, due not only to the accuracy of DNA evidence but also to the unreliability of other forms of evidence that have been contributing to false convictions since time immemorial.⁵⁰

One significant factor in wrongful convictions has been the problem of false eyewitness identifications. Sixty-nine percent of DNA exonerations tracked by the Innocence Project involved eyewitness misidentification.⁵¹ This is perhaps unsurprising due to the role of trauma in distorting witness recollections over time⁵² and the fact that police practices around line-ups and show-ups can often—even unintentionally—prove overly suggestive and encourage bad identifications.⁵³ Cross-racial identifications are notoriously less reliable than identifications made by witnesses of the same race as the suspect.⁵⁴

False confessions, as exemplified by Christopher Tapp’s case, have been identified as a factor in over 25% of DNA exonerations.⁵⁵ On average, people who confess to crimes they did not commit have been interrogated for sixteen hours or more.⁵⁶ Other factors associated with false confessions include deceptive practices by police, such as lying about evidence, isolation, intimidation, and force.⁵⁷ Whatever the particular causes, the problem of wrongful conviction has been found to disproportionately affect Black suspects.⁵⁸ The role of DNA in exonerations thus suggests that it improves not only accuracy but also equality in the criminal justice system.

Responding to the implications of DNA science for the wrongfully convicted, all fifty states have enacted statutes dealing with defendants’ access to DNA evidence post-conviction.⁵⁹ Such statutes generally provide not only a right to post-conviction testing under certain circumstances but also an easing of traditional rules of finality in cases where the results demonstrate innocence.⁶⁰ At the federal level, the Innocence Protection Act provides for post-conviction DNA testing in federal cases, and the Justice for All Act creates financial incentives for states to provide for post-conviction DNA testing.⁶¹

Increased public attention to the problem of wrongful convictions has also prompted several jurisdictions to create Conviction Integrity Units (“CIUs”) within their prosecutor’s offices to monitor and investigate potentially wrongful convictions.⁶² The creation of the CIU in Dallas County, Texas was the result of the County’s DNA retention policy as well as the election of District Attorney Craig Watkins, who made conviction integrity a particular priority.⁶³ A nationwide study of data from the National Registry of Exonerations between 1989 and 2016 even found that Dallas County was the geographic region with the greatest likelihood of a DNA exoneration occurring.⁶⁴

C. Familial DNA

An obvious limit to the use of forensic DNA in crime-solving is the fact that the universe of potential matches for crime scene samples comprises only profiles already stored in existing databases. In cases where an unknown perpetrator has no prior record or other reason to have a profile stored, DNA has been less useful. These limitations seemingly dissolved for the first time when police apprehended the Golden State Killer (“GSK”), Joseph DeAngelo, in 2018.

The GSK was a serial rapist and murderer who terrorized California across six counties in the 1970s and 1980s.⁶⁵ Escalating from peeping Tom behavior to burglary and finally to home invasion rapes and murders, which often seemed to target couples, the GSK was responsible for at least thirteen murders and over fifty rapes.⁶⁶ While initially famous for the horrific nature of his offenses and the length of his escape from justice, DeAngelo—a former police officer—would become equally famous as the first defendant identified through familial DNA.⁶⁷

Prosecutors took genetic material preserved from the rape kits of GSK’s victims and first sent it to FamilyTreeDNA, a DTC testing company.⁶⁸ DTC companies like FamilyTreeDNA allow customers to submit their own DNA through saliva samples and receive genetic information such as countries of origin, health risks, and the names of relatives who have also submitted to the database.⁶⁹ Therefore, they contain a different and more varied range of profiles than those available in CODIS as they are unrelated to known crimes. Furthermore, the genetic profiles collected in genealogy databases, instead of consisting of STRs, are unique single nucleotide polymorphism (“SNP”) profiles.⁷⁰ These are more evenly distributed through a person’s genome than STRs and can thus carry information about a person’s physical appearance that would not be available from a profile in CODIS.⁷¹

FamilyTreeDNA created a DNA profile for the GSK’s sample which officers hoped would yield the identities of close family relations and, thus, enable them to narrow their search.⁷² That attempt yielded only distant relations and proved unhelpful in identifying the killer.⁷³ However, a civilian genealogy expert assisting the investigative team uploaded the DNA profile to another DTC company, MyHeritage, using her own personal user profile.⁷⁴ She also uploaded it to GEDmatch, a then-public site to which users could upload their DNA profiles and seek out family members for free.⁷⁵

The MyHeritage search yielded a pool of second cousins of the killer, one of whom investigators visited at her home in Orange County. She then voluntarily provided a DNA sample, which showed that the killer was related to her through other family members investigators had discovered on a third DTC site, Ancestry.com.⁷⁶ This narrowed the pool of suspects down to six men, only one of whom, Joseph DeAngelo, had blue eyes—a feature already known from the original DNA profile. After ten days of surveilling DeAngelo, investigators seized DNA-bearing evidence from his trash can, finally proving him to be the killer.⁷⁷

The GSK story raises obvious privacy concerns around the access afforded to law enforcement by the companies themselves in the first place. Immediately after DeAngelo’s arrest, an investigator confirmed only that the officers had uploaded the rape kit profile to the open-source GEDmatch site.⁷⁸ For a time, the FBI treated the three private companies as privileged confidential sources, instructing California investigators that they were not to reveal their identities as they assembled charges against DeAngelo.⁷⁹

As it turns out, the companies had widely divergent views about assisting law enforcement. FamilyTreeDNA actively assisted the FBI, giving them access to the site for investigative purposes without knowing specifically which case they were investigating.⁸⁰ Their terms of service at the time contained a warning that the company could be required to release users’ personal information in response to a “lawful request by public authorities,” and their CEO stated that he did not believe assisting the police violated this policy.⁸¹ By contrast, MyHeritage’s privacy policy contained the stronger language that information would only be released “if required by law” (suggesting the company would only release information to law enforcement in the face of a warrant or at least a subpoena).⁸² Because MyHeritage did not assist law enforcement directly but merely sold its services to a purported consumer, it arguably did not violate its own policy. Its marketing executive noted that their privacy policy “did not explicitly” address this form of access and said “[i]t is possible that the civilian geneticist thought she was not violating our terms of service.”⁸³

In the wake of the interest generated by the GSK case, most DTC companies have revised their policies to strengthen and clarify the degree of privacy to be expected vis-à-vis law enforcement. For example, MyHeritage now stipulates that “[w]e will not provide information to law enforcement unless we are required by a valid court order or subpoena for genetic information.”⁸⁴ The popular site 23andMe.com makes an even stronger statement, promising “to use all practical legal and administrative resources to resist requests from law enforcement,” though noting that under some circumstances the company “may be required by law to comply with a valid court order, subpoena, or search warrant for genetic or personal information.”⁸⁵ Furthermore, most sites now prohibit users from uploading DNA belonging to someone other than themselves or a dependent.⁸⁶ Even these strengthened policies leave somewhat open-ended the question of how hard companies will resist police requests and, specifically, whether they will take the hardline position of companies like Apple, who refuse to hand over customer data in the absence of a warrant supported by probable cause.⁸⁷ Furthermore, it is difficult to imagine how genetic companies could prevent users from uploading a third party’s DNA sample under their own name.⁸⁸

There are also two notable outliers in the privacy trend in consumer genetics. GEDmatch (now owned by the Qiagen Corporation) has taken a different approach, allowing law enforcement to upload DNA samples in cases of murder, nonnegligent manslaughter, aggravated rape, robbery, aggravated assault, or when there is a need to identify a dead body.⁸⁹ While users must actively “opt in” to have their own DNA profiles matchable by law enforcement, the site actively encourages them to do so, exhorting that users can help “provide answers to those with missing loved ones” and “enable law enforcement to solve violent crimes and exonerate the falsely accused.”⁹⁰ The GEDmatch site features profiles of crime victims identified and murders solved, along with the story of Christopher Tapp.⁹¹ FamilyTreeDNA has remained the most friendly to law enforcement, now clarifying on its site that it will allow police to create profiles to help identify bodies or perpetrators in violent crimes and requires users affirmatively to “opt out” of their data’s inclusion in such searches.⁹² The state of California now legally requires consumer genetic companies to obtain consent in this manner.⁹³

As of the end of 2022, 545 cases have been solved using familial DNA.⁹⁴ Another dimension of consumer genetic databases worth noting is their demographic differences from CODIS. Black Americans appear to be overrepresented in CODIS relative to the general population.⁹⁵ By contrast, people of Northern European ancestry are more heavily represented in consumer databases (perhaps unsurprisingly due to the uncertainty of precise ancestral origins among people of vaguely European descent).⁹⁶ One study found that at least 60% of Americans of European descent may be identifiable through a genealogical database of just 1.3 million people.⁹⁷

II. The Privacy Argument for Restricting Familial DNA

This Section will consider the privacy interests implicated by law enforcement use of familial DNA, starting with the Fourth Amendment framework protecting privacy. It will summarize the scholarly commentary arguing that warrantless familial DNA searches may violate the Fourth Amendment, as well as new state statutory protections that limit such searches. Finally, it will argue that police conducting familial searches of their own databases or of DTC databases with the consent of genetically related users raises colorable but ultimately quite weak Fourth Amendment arguments.

A. The Constitutional Dimension

The debate over familial DNA occurs at a time of high doctrinal instability around the meaning of the Fourth Amendment in a world of constantly changing technology. The Fourth Amendment provides that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.⁹⁸

The Founders adopted the Amendment, which mirrored parallel provisions in state constitutions at the time, in response to the Crown’s use of general warrants in the Colonies.⁹⁹ Courts issued these warrants allowing Crown agents to search and seize evidence with no limitations.¹⁰⁰ In the infamous cases Entick v. Carrington (1765) and Wilkes v. Wood (1763), the Crown used these broad warrants to arrest two pamphleteers critical of the government and to seize their books and papers.¹⁰¹ Ultimately, Carrington and Wilkes won trespass suits against the relevant government.¹⁰²

With this brief history as backdrop, most early cases construing the Fourth Amendment understood it to prohibit only warrantless, trespassory interferences with property, allowing auditory surveillance by law enforcement where they did not physically intrude on the defendant’s property.¹⁰³ In the watershed 1967 case United States v. Katz, however, the Court made a change.¹⁰⁴ In Katz, FBI agents had attached a listening device to the outside of a public telephone booth in which the defendant was making a call.¹⁰⁵ Explicitly overruling prior precedent, the Court held that this constituted a warrantless search and announced a new rule: “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. . . . But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”¹⁰⁶ This new test for the existence of a Fourth Amendment search has become known (based on language in Justice Harlan’s concurrence) as the “reasonable expectation of privacy” test.¹⁰⁷ To apply it, courts ask, first, whether the defendant had exhibited a subjective expectation of privacy and, second, whether that expectation was “one that society is prepared to recognize as reasonable.”¹⁰⁸

While Katz ostensibly renounced the property-based trespass rule of the Fourth Amendment, the subsequent half-century of Supreme Court jurisprudence has seen, nonetheless, a doctrinal struggle between property- and privacy-based conceptions of the right. Some cases have elaborated on the reasonable expectation of privacy test, recognizing, for example, a reasonable expectation against thermographic surveillance by a heat-sensing device set up across the street from one’s home.¹⁰⁹ In other cases, the Court declined to recognize such an expectation against overhead surveillance of property by police aircraft flying at FAA-approved heights¹¹⁰ or in discarded trash set out for collection.¹¹¹ Yet, in still other cases, the Court has held that the Katz reasonable expectations test has been “added to, not substituted for, the traditional property-based understanding of the Fourth Amendment” and therefore need not apply when “the government gains evidence by physically intruding on constitutionally protected areas.”¹¹²

One rule of particular relevance to the context of familial DNA is the so-called “third-party” doctrine, which predated and survived Katz.¹¹³ The third-party doctrine states that a person has no reasonable expectation of privacy in communications they share with a third party—that the law “permits the frustration of actual expectations of privacy by permitting authorities to use the testimony of those associates who for one reason or another have determined to turn to the police.”¹¹⁴ The third-party doctrine has excluded from the warrant requirement scenarios in which an associate of the defendant has voluntarily worn a wire, as well as transaction records the police obtain from the defendant’s bank and call records (so-called “pen” registers) they obtain from the defendant’s phone company.¹¹⁵

Under both the property and privacy theories of the Fourth Amendment, courts have generally recognized the presumption that if police conduct does constitute a search, a warrant is required.¹¹⁶ However, the Supreme Court has also held that some searches that would otherwise be presumed to require a warrant supported by probable cause are nonetheless constitutional because “the touchstone of the Fourth Amendment is reasonableness.”¹¹⁷ In such cases, the Court weighs the defendant’s privacy interests against competing government interests, which usually happens in cases involving either categorical exceptions to the Fourth Amendment or administrative searches.¹¹⁸ The “reasonableness balancing” model of the Fourth Amendment has created categorical exceptions such as stop-and-frisks based only on reasonable suspicion,¹¹⁹ searches incident to arrest,¹²⁰ and police uses of force in cases where the officer’s actions were reasonable based on the facts confronting them.¹²¹ Using such balancing, the Court has also created administrative exceptions for wholly suspicionless searches of parolees, airport security checkpoints, sobriety checkpoints, fire code and public safety inspections, among many others.¹²²

As investigative technology has developed at a seemingly geometric rate, however, the Court has struggled to address all seemingly invasive police behavior under the privacy and property tests—especially in light of the third-party doctrine.¹²³ In United States v. Jones, the Court unanimously held that police engaged in a warrantless search by affixing a GPS tracking device to a suspect’s car to track its movements.¹²⁴ While the majority opinion rested on trespass grounds—that “[t]he Government physically occupied private property for the purpose of obtaining information” by attaching the device,¹²⁵ Justice Sotomayor’s concurrence suggested that, in the future, the digital age might make it “necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”¹²⁶ The Court also distinguished between digital data and other types of searches in Riley v. California, which dealt with the search of a suspect’s cell phone incident to arrest.¹²⁷ The Court concluded that “[c]ell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person,” due to the wealth of sensitive information they contain about a person’s browsing history, location, relationships, and so forth.¹²⁸ It thus held that, absent an emergency, police require a warrant to search the contents of a phone otherwise properly seized incident to arrest.¹²⁹

The future that Justice Sotomayor alluded to in Jones seemed finally to arrive in 2018 with Carpenter v. United States, in which the Court made the biggest technology-reactive shift in Fourth Amendment doctrine since Katz.¹³⁰ Carpenter involved the 1994 Stored Communications Act (“SCA”), which authorized the Government to compel private companies to disclose telecommunication records when it “offers specific and articulable facts showing that there are reasonable grounds to believe” that the records “are relevant and material to an ongoing criminal investigation.”¹³¹ While the SCA required that a magistrate make this determination in order for the government to obtain a subpoena, it was on a reasonable suspicion standard rather than the probable cause necessary for a warrant.¹³²

In Carpenter, the government obtained subpoenas under the SCA for weeks’ worth of cell-site location information (“CSLI”) from the defendant’s cell phone providers.¹³³ CSLI data consists of time-stamped records generated several times a minute when a user’s phone connects to a cell phone tower.¹³⁴ While it does not provide as precise of geographic data as GPS, CSLI data from a subject’s phone over a substantial period of time

provides government analysts with a broad picture of that person’s movements.¹³⁵

The government argued that the subpoenas were constitutional under the third-party doctrine; Carpenter had voluntarily shared his location information with his carriers in the same manner a person does their call record or as a person shares their financial transactions with a bank.¹³⁶ The Court rejected this argument, holding for the first time that an individual “maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI.”¹³⁷ Importantly (and contrary to some pre-Jones precedent),¹³⁸ the Court held that there was no distinction for these purposes between public and private movements, even if a subject’s public movements would be visible to the naked eye of someone physically following them.¹³⁹

The Court based its rule on five factors specific to the technological context of CSLI data.¹⁴⁰ First, it noted that such data is comprehensive: it provides a record of movement that is “detailed” and “encyclopedic” and constitutes “near perfect surveillance.”¹⁴¹ Second, it is intimate in the sense that a cell phone “faithfully follows its owner beyond public thoroughfares and into private residences, doctor’s offices, political headquarters, and other potentially revealing locales.”¹⁴² Third, it is inexpensive—especially compared to “traditional investigative tools” like the in-person surveillance approved in earlier third-party doctrine cases.¹⁴³ Fourth, it is retrospective in the sense that it allows the government to go back in time and investigate anyone it wishes, without having to determine an investigative target in advance.¹⁴⁴ And, fifth, it is functionally nearly involuntary, due to the fact that cell phones are “indispensable to participation in modern society.”¹⁴⁵

Some scholars have suggested that Riley and Carpenter adopt a “mosaic” theory of the Fourth Amendment—a concept the D.C. Circuit, the lower court in Jones, had originally imported from the national security context and relied on to exclude the GPS tracking data.¹⁴⁶ Under a mosaic theory, a Fourth Amendment search can arise based on police actions taken over time, even if no individual step taken in isolation would constitute a search.¹⁴⁷ Critics such as Orin Kerr argue that the mosaic theory suffers from problems of administrability and an overreliance on a subject’s probabilistic expectations of privacy, which is ill-suited to regulate electronic surveillance.¹⁴⁸ In the wake of Carpenter, lower courts have been divided over whether to formally recognize the mosaic theory as a fundamental rule of the Fourth Amendment.¹⁴⁹

These new iterations of the reasonable expectation of privacy test have sparked broader debate about Katz itself. Many critics have advocated for replacing the Katz test entirely due to its confusing and cyclical nature.¹⁵⁰ Others have argued that modern Fourth Amendment case law is actually driven by consistent principles which can now be applied to evolving technology. Matthew Tokson, for example, argues that the expectation of privacy turns on the intimacy of the area searched, the amount of information sought, and the cost of the investigation.¹⁵¹ These factors, relevant in Carpenter, are worth bearing in mind while considering how courts apply the recent Fourth Amendment precedent to DNA evidence.

B. DNA and the Fourth Amendment

Given that traditional forensic DNA technology is nearly thirty years old, it is unsurprising that much of the Fourth Amendment case law concerning it long predates Carpenter. As discussed above, early use of forensic DNA relied heavily on databases assembled by law enforcement from perpetrators and suspects who were already lawfully in custody. Broadly speaking, “intrusions into the human body” such as blood draws constitute Fourth Amendment searches.¹⁵² Yet in Maryland v. King, the Supreme Court rejected a Fourth Amendment challenge to the Maryland DNA Collection Act (“MDCA”), which allows state and local law enforcement to collect DNA samples from individuals arrested for a crime of violence, an attempted crime of violence, burglary, or attempted burglary.¹⁵³

In King, the Court recognized that the intrusion of the DNA swabbing was a search and engaged in a balancing test to determine whether it was reasonable as an administrative exception to the Fourth Amendment (and therefore not requiring probable cause of a crime likely to yield DNA evidence). Specifically, the Court balanced the defendant’s privacy interest against “the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody.”¹⁵⁴ Noting that a search incident to arrest is a long-standing exception to the warrant requirement, the Court, nevertheless, did not invoke the doctrine directly (likely because it limits a search to what is necessary to protect officer safety, prevent escape, and preserve evidence).¹⁵⁵ Instead, the Court found that “[w]hen probable cause exists to remove an individual from the normal channels of society and hold him in legal custody, DNA identification plays a critical role in serving those interests.”¹⁵⁶ Finding the intrusion on the defendant’s privacy through the physical act of swabbing for DNA to be minimal, the Court upheld the MDCA. In dissent, Justice Scalia analogized the collection of DNA from arrestees for whom there was no probable cause of a crime of violence to the general warrants of the Colonial era.¹⁵⁷

King left open many questions, such as whether DNA identification analysis of a blood sample originally drawn for a non-identification purpose (such as blood-alcohol analysis) constitutes a search.¹⁵⁸ Lower courts have found some limits to the government’s Fourth Amendment authority to perform DNA analysis on samples they’ve obtained from non-arrest contexts. For example, the Fourth Circuit has held that King did “not give a law enforcement agency carte blanche to perform DNA extraction and analysis derived from clothing lawfully obtained from the victim of a crime in relation to the investigation of other crimes.”¹⁵⁹ Similarly, an Arizona court has held that a defendant’s consent to a blood draw for testing for intoxicants did not authorize the police to create a DNA profile from the blood cells to investigate other offenses.¹⁶⁰ Federal district courts have denied government requests to conduct purported administrative DNA swabs for purposes other than the identification and safety rationales stated in King.¹⁶¹ Others, however, have allowed such explicitly evidence-gathering searches on a showing of reasonable suspicion short of probable cause.¹⁶²

While most of the existing DNA-related precedent involves clear police intrusions on the person of the subject for the purpose of collecting samples, and thus clearly trigger Fourth Amendment concerns under either a privacy or trespass conception, the use of consumer DNA databases do not involve bodily invasion. Furthermore, courts generally do not recognize a property interest in one’s DNA. In Association for Molecular Pathology v. Myriad Genetics, the Supreme Court held that isolated, naturally occurring DNA sequences could not be patented because isolating a gene is not an “act of invention.”¹⁶³ More directly on point, courts have traditionally declined to recognize a property right in one’s own genetic materials that is sufficient to support a conversion action in cases where hospitals have utilized patients’ excised cells.¹⁶⁴ Scholars argue that recognizing property rights in DNA would raise a host of problems ranging from the conceptual¹⁶⁵ to the dignitary¹⁶⁶ to the policy-based.¹⁶⁷ Critics of the status quo argue that the rise of consumer genetic companies, with the accompanying privacy concerns, necessitate property-based tools such as conversion actions to ensure good behavior and privacy practices.¹⁶⁸ At least a couple of courts have recently proved receptive to privacy-based conversion claims related to genetic information.¹⁶⁹ Five states—Alaska, Colorado, Georgia, Louisiana, and Florida—have current legislation granting people ownership of their genetic information.¹⁷⁰ Nonetheless, after Carpenter, the privacy theory of the Fourth Amendment provides a stronger foundation for the argument that familial DNA database searches trigger the Fourth Amendment.

C. The Case for Genetic Privacy post-Carpenter

The proliferating concerns over genetic privacy sparked by the rise of DTC genetics companies have been particularly salient in the law enforcement context. This Section will review arguments that law enforcement use of DTC genetic databases generally and for familial DNA searches specifically raise Fourth Amendment concerns even when third-party users consent to law enforcement access.¹⁷¹ It will also survey the state legislative responses to these concerns.

1. The Scholarly Debate

The scholarly concern over privacy issues raised by forensic DNA generally and familial DNA specifically has been widespread with the weight of commentary suggesting that warrantless familial DNA searches explicitly violate Carpenter or should at least be otherwise prohibited.¹⁷² Scholars have sought to delineate the nature of the privacy harms suffered by persons who are genetically identified through familial searches.¹⁷³ Some argue that privacy violations implicate autonomy interests and result in “people’s inability to make choices in accordance with their preferences,” a consequence with additional negative emotional effects.¹⁷⁴ Furthermore, because genetic surveillance can be both large-scale and untethered to suspicion, it can also chill the exercise of civil liberties and create the risk of discrimination and selective enforcement.¹⁷⁵

Natalie Ram, one of the leading scholars on genetic privacy, argues that, based on the factors the Court identified in Carpenter, courts should recognize a Fourth Amendment reasonable expectation of privacy in one’s own DNA, even when stored in a third-party database.¹⁷⁶ On the question of intimacy, Ram notes that genetic information is “deeply revealing” as well as “highly detailed and precise about the individual information it discloses.”¹⁷⁷ As to comprehensiveness, she notes that the sudden proliferation of consumer genetic databases and the use of genetic information in medical records—while not yet as widespread as cell phone usage—suggests that genetic analysis is a substantially growing part of users’ lives.¹⁷⁸ As to expense, Ram points out that the use of genetic data in investigations is cheap, easy, and efficient, similar to CSLI data.¹⁷⁹ Finally, as to voluntariness, she points again to the sudden proliferation of genetic databases to argue that their use “may be approaching an ‘inescapable and automatic nature’ ” in the way that cell phone use once reached fairly quickly.¹⁸⁰ She concludes that these factors all urge that there be a reasonable expectation of privacy in one’s own genetic information, even when voluntarily shared with third-party databases. Furthermore, she notes that there is a much stronger property interest in one’s own genetic information than in one’s location data—a fact seemingly supported by the user agreements of genetic sites which emphasize the user’s “ownership” of their own data, as well as the statutes in the five states that recognize it.¹⁸¹

With respect to familial DNA, the argument, of course, becomes more complicated due to the fact that an individual’s genetic information could be accessed through a third party voluntarily sharing their information—not only with the database itself but also through “opting in” or choosing not to “opt out” of sharing with law enforcement. Ram argues that in such cases, the target of the investigation who is indirectly identified through a family member’s DNA cannot be said to have voluntarily consented to the search, due to the fact that: (1) genetic relatedness is intrinsically involuntary and (2) people rarely have control over the decision-making of even near relations, much less the distant relations through which investigative matches often occur.¹⁸² She thus concludes that, while a law enforcement search of a consumer database for a direct match, voluntarily shared, may be appropriate, searches for indirect matches through third-party relations is not.¹⁸³

2. Legislative Responses

In the U.S., sixteen states have explicitly allowed law enforcement to conduct familial DNA searches, though often with policies limiting the usage to serious crimes or cases in which the public safety is at risk.¹⁸⁴ Other states, however, have passed statutes greatly limiting such searches. The District of Columbia and Maryland bar familial DNA searches of the states’ own DNA databases.¹⁸⁵ As to consumer databases, Maryland also has the most detailed statute to date, requiring judicial authorization based on a sworn affidavit by law enforcement with approval of the relevant prosecutor.¹⁸⁶ Familial DNA searches will only be authorized when the crime is murder, rape, a felony sexual offense, or an act presenting “a substantial and ongoing threat to public safety or national security.”¹⁸⁷ Furthermore, law enforcement must first attempt to identify a suspect through CODIS, as well as to first pursue “reasonable investigative leads” that ultimately fail to identify them.¹⁸⁸ The law also limits law enforcement to databases that provide explicit notice to users that law enforcement may use it and that “seeks acknowledgement and express consent from its service users” regarding this possibility.¹⁸⁹

Montana’s statute, while more vaguely drafted, appears to severely limit familial DNA searches. It provides that “[a] government entity may not obtain familial DNA search results or search results from partial matching from the [state-maintained] DNA identification index or a consumer DNA database without a search warrant issued by a court on a finding of probable cause.”¹⁹⁰ It has another provision requiring the government to obtain a warrant even for direct searches of consumer database users, unless “the consumer whose information is sought previously waived the consumer’s right to privacy.”¹⁹¹ If Idaho had such a statute during Christopher Tapp’s post-conviction proceedings, he would likely remain in prison, as no probable cause would have existed at the time for the Idaho Falls Police to have assisted his family by searching for the DNA of the neighbor who was ultimately identified. In many cases, police could establish probable cause that the owner of the unidentified sample committed a crime (as, for example, when semen is found in the body of a rape victim). At other times, such as when there are large numbers of DNA samples found at a scene, this might be impossible. Furthermore, probable cause must exist for the specific area to be searched.¹⁹² It would often be a preventative burden for police to have to establish probable cause that relatives of the perpetrator have created a searchable account with a particular ancestry site, which would be necessary to establish probable cause that the database contained evidence of a crime.

D. The Fourth Amendment Argument Against Familial DNA Searches is Weak

Any attempt to evaluate the strength of the Fourth Amendment argument against law enforcement use of familial DNA is necessarily complicated by the current instability of Fourth Amendment doctrine generally. Nonetheless, this Section will show that, whichever Fourth Amendment theory one subscribes to, the argument is fairly weak.

With respect to DTC databases in which users have opted in to sharing with law enforcement, the relevant rule is that consensual searches do not require warrants or any degree of suspicion to be reasonable under the Fourth Amendment.¹⁹³ It is therefore clear that if Person A submits their DNA sample to MyFamilyTree, opts in to law enforcement searches, and is subsequently identified as a match to a crime scene sample, no constitutional issues arise. If the DNA of said Person A leads the investigators indirectly to their Grandpa B, however, Grandpa may argue—with Ram and other scholars—that his privacy rights were violated because he did not consent to the search that led to his DNA. One possible response is that, at a physical level, it was not Grandpa’s genetic sample that was searched. In Fourth Amendment law generally, a defendant does not have standing to object to the violation of a third party’s constitutional rights.¹⁹⁴ If only Person A was searched, Grandpa has no standing to object. This same argument would apply to familial searches of lawfully collected samples in police databases.

Critics argue, however, that the pervasiveness of technology should change existing Fourth Amendment principles and that there is functional identity between one person’s DNA and their family member’s, which should change our understanding of standing in these cases. As discussed above, Ram makes a good argument that genetic data obtained through familial searches meets the Carpenter factors insofar as it is intimate, comprehensive, and inexpensive, as well as involuntary from the perspective of the family member ultimately identified.¹⁹⁵ Yet there are some compelling counterarguments. As to the intimacy of the data, Jasper Monroe-Jones notes that—unlike location or cell phone data—DNA “cannot reveal anything about a person’s actual actions, conduct, or character” but only, if anything, predisposition to various traits or diseases.¹⁹⁶ This point is even stronger when coupled with the fact that law enforcement officials who access consumer DNA sites only access the same identification information as other users, which does not include intimate information such as propensity for physical or psychological diseases.¹⁹⁷ While it would be theoretically possible for law enforcement to reconstruct such intimate information from the information they can obtain, states could pass laws specifically prohibiting this practice, which the U.S. Department of Justice’s current Interim Policy on Forensic Genetic Genealogy already does.¹⁹⁸ In short, a DNA match in a DTC database only provides one significant piece of information: the fact that a person or their family member was present at the place from which a sample was recovered.

Furthermore, critics may overstate the “inexpensiveness” of familial DNA searches—while putting a DNA sample into a consumer database may be easy, the process of building out family trees based on genetic relationships requires an expert in genetic genealogy and may take months.¹⁹⁹ For now, at least, this process is not realistically comparable to looking at a map of cell tower pings. That said, due to the need for Fourth Amendment doctrine to be durable in the face of evolving technology, it should still be assumed that this technology may become less expensive in the future.

With the specific Carpenter factors only partially apposite to the problem of familial DNA, it is worth recurring to the test Carpenter attempts to apply: reasonable expectation of privacy. While it seems clear that Grandpa B cannot consent to Person A’s voluntary release of their genetic material to law enforcement, can it be said that he has a reasonable expectation of privacy in another person’s body? No authority recognizes such an expectation, which would need to be strong enough to overcome standing principles.²⁰⁰ It is a weak argument that, even if there is no reasonable expectation of privacy in personal genetic material left in another person’s bathroom, there should be a reasonable expectation of privacy in another person’s own genetic material that happens partially to match one’s own. As critics of the Katz test’s inherent circularity might note, with the increased public awareness of DNA science, such an expectation of privacy is even less reasonable than it might have been in, say, 1985.²⁰¹

In addition, the preceding sections have made it clear that trespass-based theories of the Fourth Amendment provide even less traction for constitutional objections to familial DNA searches than does the Katz test. Clearly, a search of Person A’s sample (or the data it generates) is not a search of Grandpa B’s “person,” and most existing authorities hold that neither party has a property interest in the genetic sequence itself. Indeed, Greenberg v. Miami Children’s Hospital arose in Florida—one of only five states with statutes that recognize some form of property interest in genetic test results—and the court nonetheless held that the statute did not create a genetic property interest sufficient for establishing a conversion action.²⁰² That said, as Jessica Roberts notes, at least a couple of courts have very recently shown receptiveness to conversion claims based on privacy violations involving a plaintiff’s own genetic material.²⁰³

At the end of the day, there are colorable arguments on both sides of the question. As Ram argues, there is a mismatch in consent between the DTC user and the familial relation ultimately identified. Yet that mismatch complements another one: the mismatch in the sensitivity of the information consensually revealed about the initial user (including their immediately accessible name and contact information) and the information about the ultimately identified, distant relation (the match to a specific crime scene sample, established only after extensive analysis). Given the unique accuracy value of what such a search would reveal—near-certain presence at a crime scene—one could argue for a wholesale DNA carveout to the Fourth Amendment. In such cases, one might say that the crime-solving interests of law enforcement are particularly high relative to the interests of the suspect (privacy in the specific fact of having been at a crime scene). Entertaining such an argument, however, would require engaging in higher-level debates about the nature of the Fourth Amendment generally, which is beyond the scope of this paper.

The next Part will focus instead on one specific countervailing interest: the liberty interest of the falsely accused who could be exonerated through the availability of familial DNA searches to law enforcement. For constitutional purposes, the Due Process rights of this party must be weighed against the Fourth Amendment rights of a third party, and they must be weighed particularly heavily against any sub-constitutional privacy justifications for statutory restrictions on familial DNA searching.

III. The Due Process Rights of the Innocent Suspect

This Part will argue that a falsely accused suspect has a colorable due process right in the availability of familial DNA testing. If a legislature or court were to impose a ban or probable cause requirement that could effectively preclude law enforcement from using familial DNA to identify unknown third-party suspects, it would impinge on already narrow, yet still cognizable, due process rights designed to protect innocents. The same would be true of any statute preventing private parties, including defendants, from conducting such searches. These rights derive from three sources, which this section will consider in turn: the Compulsory Process Clause, the Due Process right to exculpatory evidence, and the Due Process right to post-conviction relief procedures.

A. The Compulsory Process Clause

The Sixth Amendment guarantees a criminal defendant, among other trial rights, the right “to have compulsory process for obtaining witnesses in his favor.”²⁰⁴ Unlike other Sixth Amendment rights, the Compulsory Process Clause is undertheorized and often overlooked by litigators.²⁰⁵ The case law on the Clause has been contradictory and confusing, alternating between the rule that it stands for the “accused’s ‘right to present a defense’ ” and the idea that it should be subordinate to statutory rules of evidence, such as the rules governing the admissibility of expert testimony, which apply to all litigants alike.²⁰⁶ It is also limited by the limits of the judicial power itself, which does not extend to the “executive” functions of the police and the prosecution.²⁰⁷

The constitutional idea of compulsory process has its origins in the burgeoning trial rights Parliament enacted in the late seventeenth and early eighteenth centuries, specifically for defendants accused of treason.²⁰⁸ Trial rights in the American colonies initially paralleled and eventually surpassed their British counterparts in scope.²⁰⁹ Pennsylvania recognized the most expansive rights; its Charter of Privileges, authored by William Penn, provided that “all criminals shall have the same Privileges of Witnesses and Council as their Prosecutors.”²¹⁰ At the time of the Founding, defendants’ trial rights within an adversary system were seen as a means of offsetting the power of the government.²¹¹ Importantly, trial rights also protect truth-generation, and historical commentators emphasize their function of ensuring that innocent defendants are not convicted.²¹²

The Subpoena Power

At the time the Bill of Rights was drafted, nine state constitutions included some sort of right for criminal defendants to call witnesses but only two, Massachusetts and New Hampshire, included the subpoena power.²¹³ Nonetheless, Congress adopted Madison’s draft language for the Sixth Amendment, including the subpoena power, with no discussion.²¹⁴ While the Supreme Court would not formally consider the scope of the Compulsory Process Clause until the twentieth century, Chief Justice John Marshall, sitting as trial judge in the 1807 treason trial of Aaron Burr, would have the occasion to demonstrate his own understanding.²¹⁵ Marshall approved a pre-indictment request for a subpoena of documents in the possession of President Thomas Jefferson without requiring the defense to pre-determine which ones might be material at trial.²¹⁶

The access to subpoenas of third-party witnesses and documents formally granted to most criminal defendants by state and federal rules of criminal procedure is notably narrower than what Justice Marshall understood compulsory process to require.²¹⁷ To avail themselves of the court’s subpoena power under Federal Rule of Criminal Procedure 17(c), a defendant must show that the evidence sought has “specificity,” “relevancy,” and “admissibility.”²¹⁸ A minority of circuits have followed Justice Marshall and held that the admissibility test requires only that evidence be potentially admissible at trial under the rules of evidence.²¹⁹ A majority, however, have applied a strict admissibility test, which requires a defendant to establish that the items sought are actually admissible before a subpoena will be enforced.²²⁰ Many states have similarly strict requirements.²²¹

While proponents of the strict admissibility requirement often describe it as necessary to prevent a defendant from going on a “fishing expedition,”²²² critics point out that it foils the purpose of the Compulsory Process Clause.²²³ The defendant may never have seen the evidence sought and therefore be unable to explain how it is admissible, and in many cases, inadmissible evidence may be necessary to obtaining other admissible, exculpatory evidence.²²⁴ The rule in force in a given jurisdiction would therefore dictate whether, in a case where unidentified third-party DNA is recovered at a crime scene, the defendant could avail themself of the subpoena power to seek familial matches in a consumer database. In most cases, it would be impossible to tell in advance whether any matches would exist at all. If they did, they would be more likely to lead to relevant evidence after further testing, rather than be admissible in and of themselves. Regardless, even in a jurisdiction with a potential admissibility rule, statutes limiting familial DNA searches could fully thwart defendants’ right to compulsory process for securing evidence. For example, Maryland’s rule prohibits any “person” from conducting a familial search of the state DNA database, which would apply to defendants as well as state actors.²²⁵

The Right to Present a Defense and its State-Rule-Based Limitations

Another contested question regarding the Compulsory Process Clause is whether, beyond the right to subpoena witnesses, it gives defendants affirmative rights to put witnesses and evidence on the stand. If so, this would be a colorable basis for arguing that a defendant has a constitutional right to present familial DNA evidence—superior to any state-law prohibitions regulating DNA and at least equal to the Fourth Amendment rights of the identified parties. In 1967, the Supreme Court considered this question for the first time in Washington v. Texas, when it considered the constitutionality of two Texas statutes preventing a criminal defendant from offering the testimony of a person charged or convicted as a co-conspirator for the charged crime.²²⁶ The Court first held that the compulsory process right is so fundamental to a fair trial that it is incorporated against the states by the Due Process Clause of the Fourteenth Amendment.²²⁷ It then concluded that it includes the right to “present a defense” to the jury:

The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.²²⁸

The Washington Court’s test for whether a state evidentiary rule violates this right is whether it is “arbitrary,” holding, in this case, that Texas “arbitrarily denied [the defendant] the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense.”²²⁹ In so doing, the Court noted that the Texas laws had deep common law roots in a rule that once totally barred defense witnesses, which was abolished by the Sixth Amendment but lived on in the form of various restrictions on the testimony of co-defendants.²³⁰

Washington would be the first of three cases in which the Supreme Court held that the Compulsory Process Clause gave the defendant a broad right to present evidence that is “relevant and material” to telling their side of the story, over state rules that are “arbitrary or disproportionate” to their purpose.²³¹ These cases explicitly emphasize the Compulsory Process Clause’s purpose of assisting the jury in the search for truth.²³² As Janet Hoeffel notes, Washington and its progeny appear to stand for the proposition that the accused’s right to present a defense is a significant one.²³³ When there is a clash between the defendant’s right to compulsory process and some state evidentiary rule—even one, as in Washington, based in common law—and the opponent of the evidence can test its reliability through the adversarial process, these cases all hold that “the Constitution prefer[s] that the jury hear the evidence.”²³⁴

In other cases, however, the Supreme Court appears to subordinate the defendant’s right to put on a case to state laws—to “shrink,” as Hoeffel puts it, “the right to little more than a right to put on evidence, as long as it comports with the rules of evidence.”²³⁵ For example, in Chambers v. Mississippi, the Court decided for the defendant, holding that the combination of Mississippi’s hearsay rule excluding statements against penal interest and its so-called “ ‘voucher’ rule,” preventing a party from impeaching its own witness, violated Due Process.²³⁶ In doing so, however, the Court did not ask the general question it asked in Washington and its progeny—whether the Mississippi rule was “arbitrary” or “disproportionate” to its stated goal of preventing perjured or unreliable testimony. Instead, it turned to the facts of the specific case and determined that the out-of-court statements at issue had “considerable assurance of their reliability.”²³⁷

The Supreme Court further refined its compulsory process rule in cases unrelated to the reliability of evidence. United States v. Valenzuela-Bernal involved the pre-trial deportation of a possible defense witnesses—a context more analogous to statutory preclusion of defendants’ access to familial DNA searches. The Court held that to establish a violation, a defendant “must at least make some plausible showing of how [the excluded] testimony would have been both material and favorable to his defense.”²³⁸ Then, in Taylor v. Illinois, the Court—while reemphasizing that the Sixth Amendment provides a defendant not only the right to subpoena witnesses but also the right to put them on the stand—rejected the defendant’s argument that such a right to exculpatory evidence is absolute.²³⁹ It held that the accused “does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence” and noted that “the trial process would be a shambles if either party had an absolute right to control the time and content of his witnesses’ testimony.”²⁴⁰ On that basis, the Court held that the trial court did not violate the Compulsory Process Clause by excluding a defense witness when it found that the defendant had willfully failed to disclose the witness in an attempt to obtain a tactical advantage that would minimize the effectiveness of cross examination.²⁴¹

In practice, the circuits have routinely engaged in fact-specific analysis to uphold trial courts’ exclusion of defense evidence as not arbitrary or disproportionate, or on the grounds that the excluded evidence was not material or favorable.²⁴² Even under a narrow view of the rule, however, it seems a criminal defendant who can show the existence of material, favorable DNA evidence has a Compulsory Process right for the court to subpoena that evidence. In practice, this would require that the defendant receive a crime scene sample from the prosecution as Brady material and obtain a subpoena from the court to allow the defense to upload it to a consumer DNA database, regardless of the database’s privacy policies.

In a case involving an unknown, third-party genetic sample found at a crime scene, the defendant has an argument that any potential matches to that profile are material in the sense that they would make the identity of a particular perpetrator other than the defendant more or less likely. The challenge, of course, would be in showing that potential DNA matches in a consumer database are likely to be favorable to a defendant. In most cases, this could not be known reliably ahead of time because the third-party sample could come from someone easily explained away as innocently present at the crime scene. Furthermore, it could not even be known ahead of time whether a consumer database would provide a familial match at all. Finally, even if a database did contain a familial match, the defense would need an expensive genetic expert to build out a profile of the actual perpetrator from the data of whichever family member had made their identity public. However, the fact that a right is difficult to realize in practice does not in and of itself allow the government to violate it.

Constitutional Limitations

Another obstacle for a defendant seeking to make a compulsory process argument for the right to subpoena familial DNA evidence comes from the constitutional separation of powers. The Compulsory Process Clause governs a defendant’s rights at trial, not during the course of a police investigation. Courts have largely recognized the right to present a defense as implicating judicial, rather than executive, branch powers.²⁴³ This distinction has extinguished compulsory process clause arguments in situations in which the law limits defendants’ ability to conduct investigations for themselves.

For example, as Rebecca Wexler has noted, in cases involving extraterritorial investigations, courts have held against compulsory process challenges the asymmetries between law enforcement and defense investigators created by Mutual Legal Assistance Treaties (“MLATs”).²⁴⁴ An MLAT is a bilateral treaty that commits the signatory nations to reciprocal cooperation in criminal investigations, including waiver, where relevant, of privacy laws that would otherwise prevent the transfer of evidence across borders.²⁴⁵ MLATs do not, however, provide for defense subpoenas of material protected by such privacy laws, which puts it out of the reach of compulsory process. As one federal court put it, “the right to compulsory process . . . cannot be stretched to include compelling the invocation of treaty process powers available only to the Executive Branch.”²⁴⁶

Courts have applied similar logic in cases involving conflict between the asserted Sixth Amendment compulsory process rights of a defendant and a potential defense witness who asserts their Fifth Amendment privilege against self-incrimination. Trial courts are deemed to have a duty to protect the witness’s Fifth Amendment right, and if a trial court sustains a witness’s assertion of the privilege, the defendant lacks the right to force the witness to take the stand only to assert the privilege.²⁴⁷ If the witness has already testified for the prosecution and asserts the privilege on cross-examination, however, the trial court may strike the direct examination testimony if it finds a “substantial danger of prejudice by depriving [the defendant] of the ability to test the truth of the witness’s direct testimony.”²⁴⁸ Otherwise, the case law establishes that in such situations of competing constitutional rights courts have no authority to either compel the government to grant immunity to a defense witness or to grant such immunity themselves.²⁴⁹ This rule appears based on the idea that immunity is “pre-eminently a function of the Executive Branch.”²⁵⁰

The MLAT and Fifth Amendment examples suggest that when a statute or competing constitutional right prevents a defendant from fully realizing their compulsory process right, compulsory process is subordinate, and courts even lack the authority to force the government to take “executive” measures to allow the defendant the same end-runs around such rules that the government is allowed to take for itself. The case law is more conflicted when the question presented is whether the Compulsory Process Clause requires a court to compel a witness to give testimony protected by attorney-client privilege. Such cases involve a clash between the constitutional right of the defendant and the statutory right of the witness. The most recent Supreme Court case to touch this question, Swidler & Berlin v. United States, left it unresolved.²⁵¹ In this case, the court held that attorney-client privilege survives a client’s death, but left open the question of whether “exceptional circumstances implicating a criminal defendant’s constitutional rights might warrant breaching the privilege.”²⁵² Since then, a minority of courts have held that that a defendant’s Sixth Amendment rights (confrontation as well as compulsory process) require the court to pierce attorney-client privilege when the witness’s testimony is material.²⁵³ Other courts categorically subordinate the compulsory process right to “traditional testimonial privileges,” in a logic similar to that of the Supreme Court in Chambers.²⁵⁴ Still, other courts will engage in some sort of balancing to determine whether the compulsory process right pierces the privilege.²⁵⁵

The context of the Stored Communications Act (“SCA”) ostensibly provides an example most relevant to the context of familial DNA. Courts have interpreted the SCA to categorically bar defense counsel from subpoenaing U.S. service providers for users’ stored electronic communications regardless of how exculpatory the potential evidence might be, while expressly permitting law enforcement to subpoena such information.²⁵⁶ The government’s subpoena power under the SCA is now, as discussed above, limited by Carpenter, thus lessening the adversarial asymmetry between prosecution and defense. Even after Carpenter, however, some courts have suggested in dicta that a categorical bar on criminal defense subpoenas for electronic communications under the statute might impinge on a defendant’s right to compulsory process under certain circumstances, though none have reached the issue.²⁵⁷ A similar argument would seem to apply to a defendant being statutorily barred from subpoenaing relevant familial DNA evidence from a consumer site.²⁵⁸

Conclusions on Familial DNA and Compulsory Process

In a case like Christopher Tapp’s, an innocent defendant would benefit from the ability to run an unidentified third-party DNA sample through a database to seek matches—direct or familial—that suggest other suspects.²⁵⁹ To the extent that the companies’ own privacy policies barred individuals from uploading DNA other than their own, this would likely require a court-issued subpoena to effectuate. In jurisdictions following the “strict admissibility rule,” the defendant would likely be unable to meet the admissibility requirement because it would be impossible to prove ahead of time that such a database would in fact contain matches relevant to the case. In jurisdictions following the “potential admissibility rule,” they would likely fare better. Either way, a rule like Maryland’s—which prohibits even defendants from conducting familial DNA searches, at least in police databases—wholly extinguishes the right to compulsory process for this type of evidence.

Privacy law scholars have called for an equivalent to the SCA to protect consumers’ genetic information,²⁶⁰ yet courts have noted in the SCA context that the total unavailability of a category of evidence due to lack of subpoena power raises Compulsory Process issues. Critics note that the current admissibility requirement in the subpoena rules of most jurisdictions raises a similar problem, broadly speaking.²⁶¹ Should states pass consumer DNA statutes that wholly bar access to such evidence by defendants, these issues would be compounded, and the Sixth Amendment impairment would be even greater. A defendant has a colorable argument that such a statute would be “arbitrary or disproportionate,” under Washington, to its privacy goal.

B. The Due Process Right to Exculpatory Evidence

The Sixth Amendment right to obtain judicial assistance in securing evidence from third parties is, as we have seen, severely limited. However, the Supreme Court has also recognized a Fourteenth Amendment due process right to the government’s exculpatory investigative materials that is distinct from—and broader than—the compulsory process right.²⁶² Brady v. Maryland held that due process requires that a prosecutor turn over to the defendant all material, exculpatory evidence in their possession.²⁶³ It further held that failure to do so violates due process even when the prosecutor is not acting in bad faith.²⁶⁴ Subsequent cases confirmed that evidence tending to impeach prosecution witnesses constitutes material, exculpatory evidence for Brady purposes.²⁶⁵ Regardless of whether the defense requests the evidence, favorable evidence is material “only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”²⁶⁶ Restated, the test is whether “the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.”²⁶⁷ However, evidence is not considered “ ‘suppressed’ by the government when the defendant has access to the evidence before trial by the exercise of reasonable diligence.”²⁶⁸

1. Brady and DNA

The Supreme Court has emphasized that the prosecutor has a duty to learn of any favorable evidence known to “the others acting on the government’s behalf,” such as the police.²⁶⁹ It is currently uncertain to what extent a defendant has a Brady right to evidence of a third-party’s DNA from a CODIS search conducted on DNA found at a crime scene.²⁷⁰ The sparse case law dealing with such claims has rejected specific arguments on their own facts, finding that the prosecution’s failure to disclose CODIS hits under the circumstances could not be “taken to put the whole case in such a different light as to undermine confidence in the verdict.”²⁷¹ Nonetheless, the reasoning in those cases indicates that if the defendant can show materiality, CODIS hits are subject to disclosure under Brady.

Brady and its progeny apply to exculpatory evidence that remains in the government’s possession, but a separate line of cases governs situations in which the government no longer possesses the evidence in question.²⁷² In California v. Trombetta, the Court held that a defendant complaining of a state’s failure to preserve evidence must show, first, that the evidence “possess[es] an exculpatory value that was apparent before the evidence was destroyed” and, second, “[is] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.”²⁷³ Subsequently, the Court added a third element to this test in Arizona v. Youngblood, holding that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process.”²⁷⁴ Numerous states have since adopted statutes requiring law enforcement to preserve DNA evidence.²⁷⁵ The government’s failure to preserve evidence when there is a duty to do so gives rise to a due process violation under some state constitutions if the evidence is material.²⁷⁶

Youngblood also said in dicta that there is no due process right to the government using any “particular investigatory tool,” including quantitative testing, to secure exculpatory evidence.²⁷⁷ This makes it unclear whether a defendant has a Brady right to require police to upload unidentified third-party samples into CODIS to search for exculpatory hits. The argument is that, due to the cooperation between local prosecuting authorities and the federal government, which runs CODIS, any data in the database could qualify as evidence “known to” others acting on “the government’s behalf.”²⁷⁸ Some courts have adopted this reasoning despite Youngblood.²⁷⁹ Others have rejected such claims but only because of a defendant’s failure to show that the testing would have been favorable to the defendant.²⁸⁰ Yet others have construed Youngblood to mean that Brady does not include the right to CODIS searches.²⁸¹ Regardless, some states have allowed these defense-initiated searches through statute,²⁸² and individual laboratories have varying policies, some of which provide for running searches for the defense.²⁸³

In District Attorney’s Office v. Osborne, the Supreme Court made clear that there is no substantive due process right for criminal defendants to access DNA testing.²⁸⁴ In Osborne, the defendant was convicted of kidnapping and sexual assault even though restriction-fragment-length-polymorphism DNA testing had not been performed on semen found in a condom at the scene of the crime.²⁸⁵ In a 1983 action, Osborne argued that he had a substantive due process right to the state’s evidence for the purposes of applying new DNA testing technology that might prove him innocent.²⁸⁶ The Court rejected that claim on the grounds that “[e]stablishing a freestanding right to access DNA evidence for testing would force us to act as policymakers, and our substantive due process rulemaking authority would not only have to cover the right of access but a myriad of other issues.”²⁸⁷

A defendant objecting to the suppression of DNA evidence during the discovery process, thus, only has a few clear constitutional arguments. A defendant might be able to argue that a CODIS hit on a third party from samples taken at the crime scene was material and exculpatory under Brady if they can pass the rather high bar of showing a reasonable probability that the outcome would have been different had it been disclosed. Christopher Tapp, whose own DNA was not found at the crime scene despite the presence of semen from other unknown sources, might have had such an argument if the other sources had been identified but undisclosed. A more challenging case arises when the government conceals the existence of testable samples of biological material that it had not itself tested. Osborne dealt only with the post-conviction context, and thus did not foreclose a procedural due process argument, under Brady, that a defendant has a right to know about untested samples. It would simply be extraordinarily difficult for a defendant to demonstrate the materiality of as-of-yet untested biological samples. Furthermore, Youngblood implies that the argument that Brady compels the state to affirmatively test unidentified third-party samples itself may be quite weak, despite some case law to the contrary.

2. Conclusions on Brady and Familial DNA

Brady applies only to evidence known to the government, which would seem to render it irrelevant to un-searched consumer DNA databases. Even the strongest view of Brady emerging from the case law only requires the government to run searches within CODIS, which includes government-controlled databases. As a practical matter, however, the very existence of Brady doctrine renders consumer databases a powerful and promising new source of exculpatory evidence for criminal defendants. Brady requires that law enforcement turn over evidence of potentially culpable third parties generated by the familial DNA searches they conduct. Thus, preventing law enforcement from accessing consumer databases without probable cause effectively deprives innocent defendants of critical exculpatory evidence.

The reality is that police and prosecutors have independent motivations to bring the correct guilty party to justice. Some prosecutors even pursue this duty post-conviction, as evidenced by the rise of Conviction Integrity Units and examples of cooperation between the government and the defense that have led to DNA exonerations as technology has improved.²⁸⁸ Given the obstacles discussed in the prior Section that prevent defendants from subpoenaing familial matches from consumer databases, law enforcement access may be the only meaningful way for the defense ever to obtain it. This is particularly true given the exceedingly high costs of using a familial DNA hit to build out a family tree and identify the actual party who left the sample at the crime scene. Even if a defendant obtained an unnamed third-party sample from the government through a conventional Brady disclosure and also obtained a court order to input the sample into a consumer database, most defense teams would lack the resources to hire the forensic experts necessary to do anything useful with the results.

This reality also sits in significant tension with the holding of another watershed Due Process case, Ake v. Oklahoma.²⁸⁹ In Ake, the Supreme Court held that the Fourteenth Amendment requires that indigent defendants raising the insanity defense be provided with state-funded psychiatric experts to examine them and testify on their behalf.²⁹⁰ The Ake Court balanced several factors: the private interest affected by the state action, the governmental interest affected if the safeguard were provided and the probable value of the procedural safeguards sought, and the risk of an erroneous deprivation of the affected interest if they were not provided.²⁹¹ On the third point, the Court found that in the absence of a qualified psychiatric expert, “the risk of an inaccurate resolution of sanity issues is extremely high.”²⁹² Despite similar accuracy concerns raised by DNA evidence, there is no parallel right to a state-funded forensic expert.²⁹³ This means that even when the government hands over testable biological material to the defense, an indigent defendant’s counsel may still lack the means to have it tested.²⁹⁴

All considered, as a formal matter, a law or constitutional holding severely restricting law enforcement access to familial DNA searching would most likely not violate Brady as courts have construed it. Yet, by effectively blocking the defense’s access to potentially valuable exculpatory evidence and to the state’s resources for testing it, such laws would indirectly burden the due process values implicated by both Brady and Ake. In trying to protect the privacy interests of guilty parties, such a rule would inadvertently impact the liberty interests of innocent ones.

C. Due Process Rights to Post-Conviction Proceedings Under State DNA and Innocence Statutes

The Lack of Constitutional Innocence Claim

The third potential source of due process rights related to familial DNA involves post-conviction appeals on the grounds of innocence. This landscape is governed substantively by the Supreme Court’s 1993 decision in Herrera v. Collins, which narrowly held that a convicted petitioner’s claim of actual innocence does not state a ground for federal habeas relief, absent some independent constitutional violation during the state proceeding.²⁹⁵ In dicta, the Court left open the possibility that “in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim.”²⁹⁶ The Court emphasized that “the threshold showing for such an assumed right would necessarily be extraordinarily high.”²⁹⁷ A few years later in Schlup v. Delo, the Court reaffirmed that no constitutional claim of innocence exists, but it also held that a showing of actual innocence may allow a habeas petitioner to avoid the procedural bar on other, defaulted constitutional claims.²⁹⁸

The Court finally addressed the issue of DNA in post-conviction appeals in the 2006 case House v. Bell.²⁹⁹ Paul House was convicted and sentenced to death in Tennessee for the 1985 murder of his neighbor, with the jury finding as an aggravating factor during the death phase that the murder was committed in the course of a rape or a kidnapping.³⁰⁰ At trial, the prosecution introduced primitive forensic evidence showing that the semen on the victim’s nightgown was consistent with House’s and that the blood on House’s pants was consistent with the victim’s, but not his own.³⁰¹ The forensic expert testified that the blood sample on the pants excluded 93% of the white population.³⁰² One of the government’s expert witnesses acknowledged that the state did not provide saliva samples from the victim’s husband, which would have helped to determine his secretor status and, thus, whether he too could have been a potential source of the collected semen.³⁰³

After his conviction, House filed a state habeas petition based on ineffective assistance and faulty jury instructions.³⁰⁴ When the trial court dismissed the petition, House appealed, but only on the jury-instructions ground.³⁰⁵ After House’s conviction was affirmed, he filed a second state habeas claim for ineffective assistance and sought investigative and expert assistance.³⁰⁶ The Tennessee Supreme Court held that these claims were barred by a statute providing that claims not raised in prior post-conviction proceedings are procedurally defaulted.³⁰⁷ On federal habeas, the Eastern District of Tennessee held an evidentiary hearing to determine whether House fell within the “actual innocence” exception to the procedural default rule recognized in Schlup. Holding that he had failed to demonstrate actual innocence, the Court denied relief, and a divided Sixth Circuit ultimately affirmed.

The Supreme Court granted certiorari to determine, as required by Schlup, whether, in light of new evidence, “it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt” in cases where a prisoner asserts innocence to avoid a procedural default.³⁰⁸ The Court reviewed the new evidence, which reflected the dramatic evolution in DNA technology between 1985 and 2006. First, it noted that DNA testing established that the semen on the victim’s nightgown and panties came from her husband and not House.³⁰⁹ It noted that this would remove sexual assault as a potential motive for the crime and cast doubt on the jury’s finding of rape as an aggravating factor for sentencing.³¹⁰ Second, it considered the testimony of an Assistant Chief Medical Examiner for the State of Tennessee that indicated that the blood found on House’s pants was chemically too degraded and too similar to blood collected during the autopsy to have come from the victim’s body on the night of the crime.³¹¹ He concluded that the stains were more likely to have been spilled from vials containing autopsy samples.³¹² On the basis of all of this evidence, the Court concluded that “although the issue is close [due to other, non-forensic evidence] . . . this is the rare case where—had the jury heard all the conflicting testimony—it is more likely than not that no reasonable juror viewing the record as a whole would lack reasonable doubt.”³¹³ The Court then remanded for consideration of the merits of House’s ineffective assistance claims.³¹⁴ While the prosecutor initially vowed to retry House if he successfully overturned his conviction, the prosecutor later dropped the charges after subsequent developments in DNA technology revealed an unknown perpetrator.³¹⁵ House had spent over twenty-two years on death row.³¹⁶

While House presents a rare case in which evidence of actual innocence had constitutional relevance in a federal habeas appeal, it is important to note how narrow a gateway the case represents. House’s substantive appeal was premised not on innocence but on ineffective assistance under the Sixth Amendment—a distinct constitutional error as required by Herrera. As in many similar cases, House was attempting to argue that his counsel had been ineffective in failing to discover and present exculpatory evidence at trial.³¹⁷ Under Strickland v. Washington, a petitioner can make out an ineffective assistance claim if they can show a reasonable probability that counsel’s poor performance prejudiced the outcome.³¹⁸ However, the Strickland test is explicitly deferential to the judgment of counsel, and courts will evaluate the reasonableness of attorney decisions ex ante, from the perspective of counsel at the time the decisions were made.³¹⁹ It is often the case that—particularly given evolving technology—the absence of exculpatory DNA evidence at trial cannot be attributed to counsel’s ineffective assistance. In such cases, given Herrera, a petitioner has no constitutional grounds for an appeal.

State Post-Conviction Statutes

As discussed in Part I, in response to political demand and the lack of existing remedies, all U.S. states and the federal government have now enacted statutes providing some sort of right to post-conviction DNA testing and for vacatur of sentence on demonstration of innocence.³²⁰ Rules of finality have likewise been displaced by statute in order to permit motions based on new evidence of innocence.³²¹ As Brandon Garrett shows in a taxonomic study of such statutes, however, most statutes create various procedural hurdles that a petitioner must surmount before obtaining testing.³²²

Some states focus on the outcome and require a showing that the DNA evidence is at least probative of innocence or, more strenuously, “material,” meaning that “a reasonable probability exists that the petitioner would not have been convicted if exculpatory results had been obtained through DNA testing.”³²³ Garrett notes that such tests would not be insurmountable if interpreted “to simply require that the DNA testing could be probative of innocence” but points out that some courts will “construct flimsy hypothetical scenarios and then hold that, if there exists even a possibility that DNA testing might not exculpate, it should not be granted.”³²⁴

Some states limit post-conviction innocence relief to DNA testing alone, precluding other sorts of scientific evidence of innocence, and others limit the relief only to technology unavailable at trial.³²⁵ A majority of states limit DNA testing to cases involving serious or violent crimes.³²⁶ Many states require that the petitioner be in custody to seek relief.³²⁷ Some exclude those defendants who pled guilty, and some specify that identity must have been at issue in the underlying trial (which, as Garrett notes, precludes relief in cases of guilty pleas).³²⁸ Four states hold that attorney error or failure to exercise due diligence at trial to preclude post-conviction DNA testing (though such defendants might be eligible for a new trial on a Strickland claim).³²⁹

The accessibility of relief under these state statutes raises distinct constitutional due process issues. In District Attorney’s Office v. Osborne, the Supreme Court recognized that a convicted individual has “a liberty interest in demonstrating [their] innocence with new evidence under state law.”³³⁰ The Court affirmed that a state-created right “can, in some circumstances, beget yet other rights to procedures essential to the realization of the parent right.”³³¹ The Sixth Circuit had held below that Alaska had violated Osborne’s due process rights under Brady by failing to provide the defendant access to the DNA evidence used at trial, because the Alaska statute provides a substantive right to be released on a sufficiently compelling showing of new evidence that establishes innocence.³³² The Supreme Court, however, held that Brady did not apply post-conviction and that a state “has more flexibility in deciding what procedures are needed in the context of post-conviction relief.”³³³ The appropriate test, the Court said, is whether Alaska’s post-conviction relief procedures “are fundamentally inadequate to vindicate the substantive rights provided” (in this case, the liberty interest in being released under Alaska’s innocence statute).³³⁴

The Osborne Court examined Alaska’s post-conviction procedures, which provide for discovery in post-conviction proceedings and specified that such discovery is available for those seeking access to DNA evidence.³³⁵ The Alaska post-conviction statute limits discovery to “newly available” evidence and imposes due diligence and materiality limitations.³³⁶ Furthermore, the Court found that Alaska courts had suggested in dicta that in DNA cases, the state constitution may even provide an additional right of access to those who cannot meet the usual post-conviction discovery requirements, though the issue remains unsettled. The Court held that these procedures, which Osborne had not yet exhausted, were “adequate on their face” to the realization of his liberty interest under the post-conviction DNA statute.³³⁷

Federal courts of appeals have been relying on Osborne to find state post-convictions procedures fundamentally adequate and, thus, reject Section 1983 claims based on refusal of post-conviction DNA testing.³³⁸ However, the Second Circuit came to the opposite conclusion about the New York City Police Department’s evidence management system in Newton v. City of New York.³³⁹ In 1985, Alan Newton was convicted of rape, robbery, and assault based on eyewitness testimony.³⁴⁰ The rape kit was not tested at trial, but in 1988, Newton moved for an order authorizing his expert to conduct forensic tests on the rape kit pursuant to New York’s post-conviction relief statute. The statute authorizes vacatur based on the discovery of new evidence that “could not have been produced by the defendant at the trial even with due diligence on his part and which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant.”³⁴¹ The New York Supreme Court granted the motion, but the officer of the Chief Medical Examiner Office reported that the rape kit contained no testable sperm.³⁴²

In 1994, New York passed a post-conviction DNA statute that allows for testing upon the court’s determination that “if a DNA test had been conducted on such evidence, and if the results had been admitted in the trial . . . there exists a reasonable probability that the verdict would have been more favorable to the defendant.”³⁴³ When Newton made a motion for testing under this statute on the grounds that technological advances since 1988 had rendered smaller samples testable, the court denied his motion after the District Attorney’s Office revealed that it had lost the rape kit entirely after the 1988 analysis.³⁴⁴ Ten years later, upon request from defense counsel, an Assistant District Attorney who had not been involved in Newton’s case searched for the rape kit again and found it in a barrel in an NYPD Property Clerk’s warehouse in Queens.³⁴⁵ After Newton had served more than twenty years in prison, new DNA testing of the rape kit exonerated him.³⁴⁶

In reviewing the district court’s decision to set aside the jury verdict for Newton in a subsequent Section 1983 case, the Second Circuit applied Osborne to the facts of the case. It held that, first, like Osborne, Newton had a liberty interest in demonstrating his innocence on new evidence.³⁴⁷ It then turned to the question of whether New York’s procedural rules were fundamentally adequate to the realization of this interest. Newton argued that, like Alaska’s in Osborne, New York State’s similar procedures were fundamentally adequate, and, unlike Osborne, Newton had diligently availed himself of all of them. However, Newton argued that New York City’s ineffective evidence management system effectively nullified those procedures.³⁴⁸

The Second Circuit agreed. Noting that Newton’s action focused not on the State law itself but on the execution of the law, the court did “not decide what specific City procedure is necessary to manage and track evidence,” but the court reinstated the jury’s verdict for Newton.³⁴⁹ It found that New York’s post-conviction DNA statute “is consistent with requiring the NYPD’s evidence management system to provide an adequate means to determine if evidence is available for testing and, if so, where the evidence is located.”³⁵⁰

Post-Conviction Statutes and Familial DNA

Newton suggests courts might be open to the argument that state procedures rendering DNA testing of old evidence effectively impossible could violate a defendant’s limited due process right to vindicate substantive rights under post-conviction relief statutes. Mismanaged storage procedures are distinctly different, however, from a formal legislative decision to restrict familial DNA searches through consumer sites. If Osborne stands for anything, it is the proposition that “[f]ederal courts should not presume that state criminal procedures will be inadequate to deal with technological change.”³⁵¹ The Court made it quite clear that “the development of rules and procedures” in the area of DNA science should be left in the “hands of legislatures and state courts shaping policy in a focused manner.”³⁵² A convicted prisoner might try to argue that a state statute effectively barring law enforcement from even attempting to re-open a case through familial DNA searches renders its procedures “fundamentally inadequate” under Osborne to vindicate their right to state-created post-conviction process. However, given the Court’s strong deference to legislatures, this argument is unlikely to prevail. It should be noted from this discussion of post-conviction process, however, that the lack of a constitutional innocence claim and the inapplicability of Brady post-conviction emphasize the importance of accuracy in initial criminal adjudications.

Conclusion: Adjudicating Due Process in Conflict

Part Two of this Article considered the argument that a subject has a Fourth Amendment right not to be subject to warrantless searches of their family member’s DNA within databases, even with the database user’s consent. It agreed with commentators who argue that DNA contains intimate information, and the consent of an actual database user is not logically equivalent to the consent of that user’s relatives who may be identified through a familial search. Nonetheless, Part Two concluded that the argument that such searches require a warrant after Carpenter is fairly weak. In the first place, the specific privacy interest recognized by Carpenter in the totality of one’s movements implicates detailed information about one’s actual life. By contrast, with the proper limitations on use, a DNA match reveals only one significant piece of information: that a subject left a particular sample in a particular place. More importantly, no authority recognizes a reasonable expectation of privacy in someone else’s bodily materials. Familial DNA works because a subject has left their own sample at a crime scene, and the police match it to the profile of a physical sample offered voluntarily by a relative. A suspect does not have a right to bar their spouse from allowing the police to take a sperm sample from their own body after marital intimacy in order to compare it to the sample in a rape kit. In the case of consumer databases, the suspect’s connection to the consenting party is even more attenuated and less voluntary. Thus, the idea that the Fourth Amendment allows them to override the third party’s use of their own body sample might be somewhat more colorable, but it is still, ultimately, weak.

On the other hand, familial DNA searches implicate the Sixth and Fourteenth Amendment rights of other criminal suspects in cases where unidentified third-party samples are found at crime scenes. Part Three of this Article argued that a criminal defendant has a colorable due process right not to have consumer DNA evidence rendered effectively unattainable by law enforcement. First, any statute preventing criminal defendants from exercising their Sixth Amendment right to subpoena that information would raise compulsory process issues. Even if legislatures or courts only barred law enforcement from conducting such searches, the defendant’s access to the subpoena power is heavily limited in many jurisdictions by the materiality and favorability requirements, and any useful hits resulting from such a search would in any case require expensive forensic testing to lead to a specific subject. Thus, the reality is that a defendant is usually only going to access important exculpatory evidence through Brady, which would put familial DNA largely out of reach if the police were precluded from conducting searches at all or only with probable cause. In any given case, this problem is also compounded by limited options post-conviction, at which point the Supreme Court has held that Brady does not apply and no independent right to DNA testing exists. Law enforcement’s ability to access the most accurate evidence on the front end affects a defendant’s right to obtain the most important kind of exculpatory evidence under Brady.

In Osborne, the Supreme Court declined to “constitutionalize” post-conviction DNA testing as a freestanding due process right to protect the liberty interest of a potentially wrongfully convicted party.³⁵³ Innocent defendants would then be especially harmed by an asymmetrical attempt to “constitutionalize” DNA on the front end—during investigations. Should courts recognize, or legislatures adopt, a Fourth Amendment rule that keeps familial DNA away from law enforcement absent probable cause, such defendants would be effectively shut off from the most accurate and valuable evidence at all stages of the criminal process. Like the Fourth Amendment argument, this Sixth Amendment argument is also somewhat weak since most courts do not even recognize a Brady right to law enforcement searches of public databases. Nonetheless, because a categorical ban on warrantless searches would essentially render all familial DNA evidence inaccessible, it would inherently block a defendant’s access to exculpatory evidence.

The admissibility of familial DNA is, thus, not a due process question in which it makes sense to think of balancing one defendant’s rights against purely “government interests” (although the accuracy of DNA evidence certainly makes the government’s crime-solving interest particularly high). Rather, there are two potential defendants’ liberty interests at stake—one of whom is most likely innocent. Constitutional rights necessarily have limits when they impact other parties’ constitutional rights; scholars debate whether these constitute limits on the scope of rights or simply their realization.³⁵⁴ Many nations’ constitutions have general limitation clauses, which set out the specific conditions under which constitutional rights can be limited.³⁵⁵ However, the United States does not have a general limitation clause and defines certain rights without any limitation.³⁵⁶ Courts have treated some rights as having implicit limitations, such as when they engage in interest balancing to determine “unreasonableness” under the Fourth Amendment. For other situations, the Supreme Court has adopted its own, much criticized tiered system of scrutiny.³⁵⁷ Sometimes, though inconsistently, courts limit constitutional rights through recourse to some version of John Stuart Mill’s harm principle, which holds that the only acceptable limitation on liberty is when it is necessary to prevent harm to others.³⁵⁸

Generally, it is true that a constitutional right’s lack of limitation clause does not render the right absolute but instead subject to interpretation in harmony with the Constitution’s other provisions and other legitimate public interests.³⁵⁹ This inherently entails courts prioritizing certain rights over others based on the facts of a particular case.³⁶⁰ In the context of criminal justice, for example, claims of Sixth Amendment deprivations “are subject to the general rule that remedies should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests.”³⁶¹ Thus, trial courts have discretion to limit a defendant’s Sixth Amendment confrontation right in a particular case through limiting the scope of cross-examination based on potential harms, such as harassment of the witness, prejudice, confusion of the issues, the witness’s safety, or questioning that is repetitive or only marginally relevant.³⁶² In United States v. Stein, the Second Circuit found a violation of the Sixth Amendment right to counsel where a Department of Justice charging policy caused a private employer to terminate attorneys’ fees that they would otherwise have paid for according to the terms of their employees’ contracts.³⁶³ While the employees did not have a Sixth Amendment right to employer-funded legal counsel—in the same way that a suspect may not have a right for the police to conduct a familial DNA search—it nonetheless constituted an interference with the employees’ exercise of their Sixth Amendment right to mount a defense with their own assets that could not be justified by the state interest in encouraging cooperation by the corporate defendant.³⁶⁴

Cases of competing constitutional interests are more delicate. In Nebraska Press Association v. Stuart, the Court rejected an absolute balancing test between the First and Sixth Amendments where, in order to protect the accused’s right to an impartial jury, a trial judge had issued an order restraining members of the press from publishing or broadcasting accounts of the defendant’s admissions.³⁶⁵ The Court noted that “[t]he authors of the Bill of Rights did not undertake to assign priorities as between First Amendment and Sixth Amendment rights, ranking one as superior to the other”³⁶⁶ and proceeded to balance the nature and extent of pretrial news coverage, potential mitigating measures, and the effectiveness of a restraining order at preventing the danger; ultimately, the Court held for the petitioner journalists.³⁶⁷

When courts must adjudicate clashes between the constitutional rights of two criminal defendants, their work is complicated by the fact that the meaning of criminal due process is itself contested. Due process has a specific doctrinal meaning related to the procedures required by the Fifth and Fourteenth Amendments, the latter of which incorporates most rights in the Bill of Rights against the states.³⁶⁸ It also has a broader meaning that represents the “principles of civility or fairness that are supposed to underlie procedural and often substantive legal rules.”³⁶⁹ Because of its prominent role in the Bill of Rights, due process has become a distinctly American concept, with jurists in other nations resorting to other concepts such as “procedural justice,” “the rule of law,” “natural justice,” and “fundamental justice.”³⁷⁰

In The Limits of the Criminal Sanction, Herbert Packer famously divides criminal justice thinking into two camps.³⁷¹ One, which he refers to as the “Due Process Model,” values the observation of fair procedures, even at the expense of letting the guilty go free, while the other, the “Crime Control Model,” values accurate determinations of guilt and innocence.³⁷² Accuracy has, in and of itself, been a value central to constitutionalized criminal due process since the start of the criminal procedure revolution in the mid-twentieth century.³⁷³ Rules about impartiality and reliability, the right to counsel for indigent defendants, the right to cross-examination, and the rule against involuntary confessions all exist to prevent the conviction of innocents due to malicious, lazy, hasty, or overzealous police and prosecutors.³⁷⁴ In In re Winship, the Supreme Court held that the standard of proof beyond a reasonable doubt is a due process requirement in criminal trials on accuracy grounds.³⁷⁵

As David Resnick argues, due process serves an important justificatory purpose, providing reasons for subjecting a person to criminal punishment.³⁷⁶ He notes that “our concern with the subjective probability of correct outcomes reflects a requirement of morality and not simply efficiency or rationality.”³⁷⁷ Thus, while critics tend to pit accuracy values against due process values in cases where fair process requires guilty defendants to go free, the protection of innocents is a critical moral component of due process. The availability of DNA evidence inherently implicates accuracy values—not only the broader societal goal of identifying the guilty but also an individual’s right not to be punished without justification.

That said, Packer’s “Due Process Model” fits the argument that unwarranted familial DNA searches violate the Fourth Amendment rights of the third-party family members identified. Under this view of due process, the absence of “fair play” for the suspect should override the state’s interest in crime solving.³⁷⁸ Some of the Supreme Court decisions that fit this model have been described as premised on “fundamental fairness”—most notably Rochin v. California, which excluded evidence found after law enforcement pumped a suspect’s stomach against his will and without judicial authorization.³⁷⁹ In an opinion by Justice Frankfurter, the Court held that the stomach pumping—while producing accurate evidence—violated due process because it “shock[ed] the conscience.”³⁸⁰ The Fourth and Fifth Amendment exclusionary rules in general represent the primacy of fair play over accuracy since they necessarily better protect the procedural rights of the guilty than they do the innocent. However, an unjustly accused party could also argue that principles of fair play and fundamental fairness should prevent them from being criminally convicted without access to a whole body of highly reliable evidence.

It should be noted that there is a third set of due process values beyond these two that is related to the expressive function of criminal procedure and its relationship to public confidence in the justice system. The public will be more likely to support and participate in criminal justice when it believes that the process operates fairly.³⁸¹ On that basis, some critics point out that “[a] focus on the individual rights of the defendant to the exclusion of the interests of other participants belies the public’s critical role.”³⁸² In this view, a trial is not just a fact-finding mission but serves an “important symbolic function as public expressions of the affected parties’ rights to demand that official acts be explained and justified.”³⁸³ This concept of due process is particularly important in the case of familial DNA. High-profile cases like the Golden State Killer have increased public awareness of this science, and exonerations like Christopher Tapp’s, which was widely covered in true crime media, have created demand for it as a means of recourse for the wrongfully accused and convicted.

Ultimately, the case of familial DNA does not present a simple, bilateral competition between fair Fourth Amendment process for a criminal defendant and public interest in crime-detection; it also implicates the Sixth and Fourteenth Amendment rights of an innocent suspect whose risk of wrongful conviction would be higher in a world with law enforcement access to familial DNA substantially restricted. Should courts consider Fourth Amendment claims challenging familial DNA evidence, they should bear in mind these other defendants when determining whether such searches are reasonable without a warrant. Furthermore, should states seek to regulate law enforcement use of DNA via statute, they should not adopt restrictions as broad as Montana’s. Ideally, even if states do restrict law enforcement access, they should at least create a formal subpoena process to clarify how criminal defendants can access this evidence. However, given the limitations on defense testing resources, this mechanism would likely benefit only a minority of defendants and should be supplemented by some degree of law enforcement access.

98 S. Cal. L. Rev. 761

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Erin Sheley*

* Professor, California Western School of Law. Many thanks to Daniel Yeager and Donald Dripps for their valuable comments on drafts of this Article. I am also grateful to the helpful feedback I received at workshops from the faculties of California Western School of Law and the University of San Diego School of Law.

Punishment as Placebo

May 2025May 2025Sheldon A. Evans*

The modern criminal punishment regime has failed to deliver on its promise of public safety. For all of the resources expended and all of the human costs incurred, the ever-growing carceral state does not make us safer. Scholars across the social sciences have studied these shortcomings for decades using various methodologies. The burgeoning prison population has little relation to the crime rate, which advocates have argued supports decarceration efforts to remedy the inefficiency, inequality, and subordinating effects of harsh sentencing policies and institutional design choices that have supported the mass incarceration crisis. What then justifies the continued propagation of this failed regime?

This Article proposes a new balancing of considerations to answer this question that innovates punishment theory through the medical and experimental lens of placebos. The efficacy of policy must be balanced with its public perception; thus, a policy may not be effective at fixing a problem, but this is often less important than the perception of the policy. A medical placebo treatment may be physiologically inert, but it still can have a positive psychological and therapeutic impact by making the patient feel better because they think they are receiving effective treatment. In the same way, the cultural value of mass incarceration extends beyond its failed effectiveness by providing psychological and therapeutic value to help the public cope with their fear of crime, their moral commitments to justice, and their socialized feelings towards offenders.

This placebo methodology offers several unique insights about punishment theory and practice that learn from the extensive medical research and ethics literatures. By viewing punishment as a placebo, the modern punishment regime must confront unique questions concerning the social harm of punishment, the justifications for public deception, the ethics of experimentation, and the perverse economics of inefficacy. These theoretical synergies also provide practical insights into how to reverse and regulate such placebo punishments while focusing on a more humane and ethical punishment future.

Introduction

“Freedom from fear is a basic right of every American. We must restore it.”¹ Richard Nixon’s bold message to America illustrates one of the most underappreciated aspects of modern criminal punishment policies: the fear and perception of crime is just as important as the actual presence of crime. Nixon understood these political winds and social yearnings, and he ushered in a new vision of law-and-order national leadership through his War on Crime.² This “fear of crime” was the overriding concern of Ronald Reagan’s administration that passed some of the most sweeping crime bills and policies in modern history.³ George H.W. Bush picked up this thread when he declared that “freedom from crime and the fear that stalks our cities” was a “fundamental civil right” that he was committed to protecting through crime control legislation.⁴ And not to be outdone by Republicans, Bill Clinton continued this trend when supporting further crime legislation by arguing that if “the American people do not feel safe on their streets, . . . then it is difficult to say that the American people are free.”⁵

These words from past presidents highlight an important duality in criminal law that has shaped an entire generation of policy yet is curiously understudied in the legal academy: the relationship between efficacy and perception. In other words, there are two values that criminal law and punishment seek to deliver as a public policy. First is the value of efficacy, which measures how effective the law is in actually achieving public safety goals by lowering crime rates and making us safer. Second is the value of public perception, which measures how the law assuages public fear and controls how we perceive or feel about our safety and the prevalence of crime. Both of these values have explanatory weight in how we study and think about criminal law and punishment. While there has been robust consensus that harsh, tough-on-crime policies have not delivered on their promises of efficacy in making Americans any safer, these discussions miss perhaps the more important value at play in our system. As we can see from former chief executives,⁶ crime policy is just as (or even more) concerned with assuaging public fear and controlling public perception as it is with the law’s efficacy.

This Article takes the path less travelled by focusing on the value of perception in criminal legal policy. Even if we accept arguendo that criminal law enforcement and policies have objectively failed to lower crime rates, do these policies nevertheless hold some value in making Americans feel better about crime? This Article tackles that question through a theoretical methodology that brings to bear medical, social, and ethical considerations in a framework that portrays modern punishment as a placebo: something that is not efficacious at fixing the underlying problems of crime yet might have psychological and therapeutic value in impacting society’s perceptions of crime.⁷

Placebos have been a part of medical research for generations, but they have also become a respected tool for studying social behavior.⁸ For example, a person’s lucky hat might make them feel more confident; as a result, social scientists can conceptualize and measure a positive placebo effect on this person’s perception and expectations when wearing this lucky hat.⁹

At a societal level, the same can be true of legal rules. Anup Malani has considered how legal regulations in healthcare and even tort law shape people’s perceptions and expectations similar to placebo effects.¹⁰ Amitai Aviram has also studied the law’s role in manipulating perceptions when a law is designed to signal an increased or decreased risk of certain activity.¹¹ Regardless of a law’s efficacy, Aviram recognized the law’s role in impacting social perceptions of safety.¹² In this way, the law may have created a safer environment, but its primary value in increasing social welfare was a psychological placebo.¹³

In the criminal legal context, this Article argues that modern punishment policies—and specifically, mass incarceration as a case study—would benefit from being conceived as a placebo. These policies promise to address the social problem of crime, but they are no longer designed or implemented efficaciously to fix that underlying problem. Instead, the primary value of these policies to the public is their ability to control, assuage, and in some cases manipulate feelings, perceptions, and expectations toward crime.

To build out the analogy a bit further, let’s liken punishment to a form of medical treatment. A patient may go to see their doctor with a particular physical health problem; the doctor may choose to prescribe the patient a placebo treatment that is not meant to efficaciously treat the patient’s physical problem but instead is meant to make the patient think they are receiving an effective treatment. The placebo is only delivering a psychological or therapeutic benefit to the patient. And because of the interesting ways that placebos work, the patient does indeed feel better. Applying this logic to punishment requires a bit of imagination, but nevertheless has conceptual value. The patient is the public, who is dealing with the social ill of crime. Thus, the public/patient seeks solutions from social decisionmakers such as politicians, police officers, prosecutors, and other actors who diagnose the problem and purport to give an effective solution; however, like a placebo, these policies that have increased the surveillance state, police power, and mass incarceration have not delivered on the efficacy front but are instead meant to control public perception and make the public feel better about crime. I understand this is not a perfect analogy and there are nuances to be explored below, but using this methodology of placebos is an important turning point in how we should think about criminal policy and how the efficacy and perception values interact. The objective study of efficacy must be balanced with these more subjective studies of feelings and perceptions of crime to understand the social currency of punishment.¹⁴

Using interdisciplinary tools of medicine, sociology, and ethics, this Article explores more than a mere metaphor by developing a fuller methodology that reframes criminal punishment in ways that hold valuable insights and complexities for the criminal theory literature. First, the placebo methodology studies and illuminates the types of social cues that impact public perception in the criminal space, such as the emotion of fear and the social and cultural meanings of punishment.¹⁵ Second, it refocuses the punishment literature on the oft-forgotten history that the medical field shares with criminal law.¹⁶ The so-called disease of the criminal mind,¹⁷ the dangerousness of the disabled,¹⁸ and the criminalization of illness¹⁹ are just some examples. Just as individual people could be perceived as dangerous due to an illness or impairment, so too have we used the criminal law to excise people from society that threatened our fragile moral and cultural foundations. Third, the socio-medical ethics of placebo treatments frame unique questions specific to that field that provide an opportunity to discuss the larger ethical questions of punishment. For example, the crossover between the ethics of harm, benevolent deception of the public/patient, using placebos and punishments as tools of experimentation, and the economic incentives at play are important considerations of both the theoretical and practical stakes.

Finally, the above theoretical framings are foundational to the practical interventions that the placebo methodology might inspire.²⁰ As with all punishment, underlying theory heavily impacts the types of practical punishments we impose on people who have violated criminal laws.²¹ Throughout the analysis of the placebo methodology, this Article explores unique policy solutions gleaned from medical and scientific literature to consider how to fix the problems that overreliance on placebos can bring. This includes unique interventions rarely trodden in the punishment literature, such as new approaches to government regulation, ethical boundaries, policy experimentation, and cultural messaging. Thus, after a generation of failing to solve the problems of mass incarceration and the ballooning punishment regime, the placebo methodology hopes to elucidate innovative practical interventions.²²

The placebo methodology and all its theoretical and practical draping must ultimately answer the most important question of punishment scholarship: Is punishment justified? If punishment does indeed operate as a placebo and provides meaningful value to public perception, is this enough to justify the status quo? Many people would agree that in general, we police and punish too much in this country. And even if it does not make us any safer, we should not give short shrift to the law’s power to make us feel better. These are questions that address the ultimate payoff of the criminal legal system and the degrees of punishment severity to which we are willing to condemn our fellow man for the utilitarian benefit of our collective feelings.

This Article humbly contributes to these discussions in four parts. Part I builds out the placebo methodology by diving deeper into the shared logic between placebos and punishment as treatments for physical and social ills, respectively. Part II applies the placebo methodology to the mass incarceration crisis as the most salient case study that dominates modern conversations about punishment. Part III further explores the placebo methodology as it applies to mass incarceration under a host of different socio-medical considerations, including the harm principle, justified deceptive practices, the ethics of experimentation, and economic incentives. Further, this Part also confronts the all-important question of whether punishment is justified under the placebo methodology. Part IV closes the Article by broadening the framework to other worthwhile legal disciplines, as well as considering tangential socio-medical framings of punishment that might also be worthy of future exploration. This Article hopes to advocate for the placebo methodology as a malleable toolset that should be utilized in future legal research exploring social modeling of behavior and policy.

Exploring punishment as a placebo policy is more than just a clever alliterative analogy. The placebo methodology gives punishment theory and policy interventions a new set of tools that fully appreciate the cultural and social impacts of criminal punishment. And with such an outlook that values both actual and perceived goals and benefits, we can establish a more careful and nuanced critique of the status quo that calls for a rejection of placebos in favor of panaceas.

I. The Placebo of Punishment Theory

When boiled down to its purest form, the placebo methodology seeks to add a set of social and cultural tools to understanding modern punishment based on how placebos work in the medical field.²³ Such analogies are not new in legal scholarship and often add value by discovering latent assumptions or highlighting underappreciated aspects of legal analysis through a new theoretical framing.²⁴ Following this tradition, this Part pushes deeper by explaining why framing punishment as a placebo is more than a metaphor, but a more fulsome methodology. Section I.A fleshes out the theoretical and literal connections between punishments and placebo treatments by focusing on the actors in each system. Section I.B explores the placebo effect of punishment and whether it succeeds in making us feel safer. These Sections offer important insights into the socialization of punishment and how we should think about the causes of crime, as well as introducing the ethical and practical dilemmas of power, politics, and subjective perceptions to be explored in later Parts.

A. The Placebo Methodology

The theoretical and logical connections between placebo treatments and criminal punishment is a simple idea: Like a medical treatment, punishment has been prescribed to our modern society to solve the underlying problems of crime; but like a placebo, our modern punishment system does not deliver on its promises of efficacy by lowering crime rates but rather is meant to control and mitigate public perception of crime.

Although the exact definition of a placebo treatment is contested in the medical literature,²⁵ placebos, for purposes of this Article, can be defined as treatment that is administered by a person in power (usually a doctor or medical researcher) to provide psychological or otherwise therapeutic benefits to make patients feel better, with little or no active ingredients that would be efficacious to treat the physical medical problem.²⁶

In this methodology, the individual patient being treated is the body politic. This is based on a larger relationship between the study of the physical body and its relation to society as a whole.²⁷ Since ancient times, the human body has served as a structural archetype of society and its institutions.²⁸ The Greek and Latin traditions had a double meaning for the term “diet.” It meant both a mode of ordering one’s life, as well as a political assembly of princes that performed legislative and administrative duties.²⁹ The term “regimen” also had a dual meaning, referring both to a medical means of therapy and also a system of government that we refer to as a “regime.”³⁰ This is part of the larger Western tradition that has found a double and connected linguistic and cultural meaning between caring for the individual body and upholding the larger social body. Political tradition borrows from human and natural traits to name its institutions, such as the “head” of organizations and governments, “branches” and “arms” of the same, and using the “body politic” to identify an entire society as one social organism.³¹ Religious tradition is rife with such symbols, often using the body as a metaphor for spiritual insights: the body of Christ was a symbol for the institutional church; Adam’s rib was a symbol of patriarchy; the flesh versus spirit dichotomy that represented moral weakness and strength respectively; and the list can go on.³² These examples do not do justice to the sheer number of body-as-society analogies that abound to illustrate the body’s enduring importance into how we think about society and its institutions. The human body is a foundational lens of Western thought and philosophy on social order.³³ Society is personified because our political and philosophical tradition recognizes that institutions mirror the very humans they seek to regulate.³⁴

The body’s dysfunction and disease has also been an important characterization of social disorder in Western thought. Physical diseases were frequently interpreted as manifestations of a “deeper malaise in the social structure.”³⁵ Consequently, the concept of disease was used as a symbol of social problems that could break down and destroy the body politic just as actual disease could break down the physical body. Only a few hundred years ago, obesity was considered to be an individual “manifestation of the flabbiness of the social system,” especially as it exposed the sedentary lifestyle of the rich.³⁶ Even cancer has a history of being described as a “disease of civilization” that manifested during certain social failings.³⁷ This is an interesting cause-and-effect relationship because in many ways, social hierarchies have always exposed some classes of society to various diseases. For example, the social hierarchy of the rich allowed those in agrarian societies to live less active lifestyles.³⁸ Thus, social ordering can certainly impact the development of individual diseases, which in turn communicates a broader identity of a society in accordance with its social priorities. Consequently, the history of associating the presence of physical disease as a larger sign of social disorder, malaise, and even moral decay is well documented.³⁹

The individual human body is more than biological muck; it is our tool for interacting with and understanding the natural and social world. The body serves as a mirror image to help us understand social institutions, and in turn, those social institutions help shape the roles of our bodies in social structure. The intersection between our bodies and our institutions govern issues of “health, gender, childhood, ethnicity[,] and disability[,] and many more substantive areas[,]”⁴⁰ including crime and punishment.

If the patient is the public, then the patient’s disease can be understood as crime itself that threatens the health of social order just as physical disease causes strain and breakdown of the physical body. To let such a social disease fester and ferment would be tantamount to allowing a physical plague to spread without proper intervention of cultural sanitation.⁴¹

The disease/crime comparison is a longstanding principle in our social understanding and moral disapproval of deviant and antisocial behavior. Academics, commentators, and public officials have often used this crime/disease analogy to display their disgust and rally public and intellectual opinion. Emile Durkheim and contemporary scholar Martha Grace Duncan have separately written about how society treats crime and criminals as socially unclean things that must be resolved through institutional intervention.⁴² Academics have built on this concept by discussing a “quarantine” model of criminal justice that evokes the need to separate people with the contagious disease of criminality from the rest of society;⁴³ there are frequent comparisons to crime as a cancer of society that

suggest it will metastasize unless properly dealt with.⁴⁴ Even our most liberal politicians have fallen prey to such logic, comparing the spread of violent crime to “a national plague.”⁴⁵

Given these rhetorical similarities, it comes as no surprise that the criminal law has often found an ally in the medical sciences. First, we can consider how disease and crime were understood together throughout our history, which captures how physical diseases have been criminalized to various extents as a method of preserving social order and public health. Criminal laws have often been used to identify medically “dangerous” and “contagious” people who suffer from a host of diseases and ailments and excises them from the community through the same logic of medical quarantine. As medicine was used to diagnose a host of illnesses that illustrated social anxieties toward what dominant groups deemed unacceptable behavior,⁴⁶ crime policy followed close behind to regulate and punish such behavior.⁴⁷ Religious laws that determined cleanliness go back for thousands of years, and were used to regulate and criminalize behavior of people suffering from leprosy and bloodborne diseases.⁴⁸ In the era of the HIV/AIDS epidemic, intentional spread of the communicable disease was at one point criminalized as first-degree murder; only in the 1990s were these doctrines struck down in favor of lesser criminal offenses.⁴⁹ Thus, the medical authority of the era always determines which individuals are dangerous to public health, and criminal law has been a part of the infrastructure used to prevent spread of these diseases. It has also been used to assuage the public that they would be safe from such “dangerous” individuals because the law would keep them in their appropriate place.

Mental illness and disability have a jaded past that continues in criminal law to this day. Homosexuality was treated like a mental illness up until only a few decades ago,⁵⁰ and was criminalized accordingly.⁵¹ Alcoholism, substance abuse, malingering, and even political dissent have been subsumed under various definitions of mental or physical disease to be regulated by the criminal law.⁵² People dealing with various mental health issues have often suffered from stereotypes that they possess characteristics of criminality.⁵³ These people are often mischaracterized by police and bystanders as being more dangerous, which then justifies legal use of force and coerced treatment through criminal law.⁵⁴ Consequently, the prison as an institution has turned into the neoliberal mental health facility,⁵⁵ often responsible for distributing more prescription mental health treatments than any other institution.⁵⁶ This should come as no surprise because over one-third of incarcerated persons have been diagnosed with a mental illness.⁵⁷

The criminality of physical ailments and the treatment of mental illness change according to social constructions of who the dominant social group deems deserving of criminal punishment. As Jamelia Morgan has studied, mental and physical disability is just one area that has been “conceived of as a social contagion or pathology to be contained through policing and carceral control.”⁵⁸ All of these criminal laws are socio-medical reactions that were purportedly meant to keep society safe based on the best science of the time; but they often functioned by subjugating the sick, disabled, and the most vulnerable. Fear was central in these criminal responses; it was fear of the unknown, fear of the unclean, and fear of the transmission of such conditions in the general public.⁵⁹

This interaction between the patient/public and disease/crime raises even more interesting questions. For one, the entire public may not be suffering from the disease of crime, just as a medical malady might not be spread throughout the entire body. Just as diseases are often concentrated in certain areas of the body, crime too is unfortunately concentrated in certain pockets of our body politic. Crime tends to be concentrated in poor areas with high population density.⁶⁰ Perhaps there is a further lesson here in the methodology; neglect can often lead to problems. If an individual neglects to care for their body through nutrition, hygiene, or general maintenance, we might not be surprised that such neglect correlates with medical problems down the road. So too should we think about our body politic neglecting our inner cities, our less financially fortunate citizens, and how such social and institutional neglect leads to problems of crime.

Also, conceptualizing crime as a social ill or disease can lead to some problematic conclusions unless properly contextualized. Framing crime as a disease is a tool of dehumanization that seeks to justify treating criminal offenders as a cancer: something to be removed or excised from society, or even killed.⁶¹ Humans have a pattern of dehumanizing others by comparing them to animals, nonconscious life forms, or inanimate objects to justify treating them as nonhumans. This is one of the darkest corners of our collective psyche; labelling people as rats, roaches, diseases to be cured, mud and filth, and a whole host of other analogies that form the basis for treating human beings like those things being analogized.⁶² Cages and steel bars are suitable for animals; a dustpan and trashcan are suitable for dirt and grime; excising and killing unhealthy cells is quite appropriate for cancer and biological diseases. We must resist the urge from our ancestors to go down this dehumanizing path because history bears witness to where it often leads. Labelling people that violate criminal laws as animals, dirt, or cancerous cells has the danger of repeating the punishment mistakes of the past.

Instead of using the cancer analogy and the broader disease/crime framing to dehumanize and justify excising or segregating cancerous cells, we should instead address the underlying problems to prevent the disease in the first place and to make conscious interventions for the social body to heal cells to prevent their criminal or antisocial growth.⁶³

The disease/crime framing also challenges us to consider the possibility that a treatment itself has become harmful to the social body. Just as chemotherapy introduces a carefully regulated level of poison to the body to kill cancerous cells, such a treatment can also wreak havoc on healthy cells and the body as a whole.⁶⁴ Unfortunately, chemotherapy also has the potential to lead to adverse health outcomes, including death, as part of the natural course of the treatment.⁶⁵ The considerations of punishment and mass incarceration must ask these same questions. How much has punishment had external and downstream impacts on the rest of society, and might it too also lead to negative outcomes for the body as a whole? And as will be discussed below, has the placebo treatment of mass incarceration itself become harmful to the body? The final part of the placebo analogy connects the role of doctors to various actors in the criminal justice system who prescribe and apply the treatment of punishment. Doctors play an important role in the healthcare system as care providers, and they deal directly with patients to give medical advice and prescribe treatments. Even with all of the medical advancements and growth in scientific knowledge, doctors continue to this very day to prescribe placebo treatments to their patients in clinical settings.⁶⁶ In this way, public officials in our executive departments and legislatures have built similar relationships of trust with their constituencies who have decried the social disease of crime; these decisionmakers have prescribed a solution of harsh criminal punishment as a way of treating this disease and returning society back to a state of health and harmony.⁶⁷ High-level politicians help facilitate and work with legislators and state actors such as police and prosecutors to deliver the treatment of punishment at the street level.⁶⁸

However, the incentives of politicians are not congruent with those of doctors. Consequently, we see politicians wield their prescribed treatment of punishment in a perverse loop meant to keep themselves in power. Instead of using criminal policies to make Americans feel safer, they use these policies to control public perception of crime in a way that ensures it will be politically advantageous. This is accomplished through the somewhat oversimplified political process that follows: Politicians and media whip up and create fear of crime in the populace because fear drives votes⁶⁹ and views⁷⁰ respectively, and voters give power to these politicians who promise to fix the problem.⁷¹ While crime is indeed real and its impacts often terrible on an individual and societal level, politicians perversely operationalize fear of wrongdoing to bolster their political power.⁷² Therefore, there is an incentive to maintain an optimal level of fear and to push the “fear” button every few years to ensure that voters continue to trust in the politician and their policies. In 2022, for example, Fox News ramped up its coverage of crime to prime the public to vote for law-and-order Republican candidates before the congressional midterm elections; after the elections, their coverage of crime dropped by a stunning 50%.⁷³ Studies have also shown that Americans’ perception of crime changes favorably when a member of their party occupies the White House.⁷⁴ Thus, while Americans do not feel safer from crime, they do feel that they are in safe hands when voting their preferred politician into office.⁷⁵ Putting these principles together, the placebo methodology takes shape by explaining the operation and incentives of using punishment as a treatment that turns out to be a mere placebo as a consequentialist project.⁷⁶ Most people, even in high-crime areas, aren’t often witnesses to actual crimes that unfold before them.⁷⁷ They hear about crime from their friends, they see it on the news, and they feel the anxiety of their neighbors.⁷⁸ Thus, lowering these perceptions of crime would have multiple social benefits. Businesses are more likely to invest in areas that they perceive as low-crime, individuals are more likely to civically engage in these communities, and even property values can be impacted by market perceptions of crime.⁷⁹ Thus, if a placebo policy of punishment made society feel better, the law would be justified as yielding positive future outcomes. This explains in part why politicians and decisionmakers have been so adamant to prioritize public perception of crime.⁸⁰ It is indeed a social lever they can turn to yield the social and political outcomes they desire.

The social and political aspects of crime policy are all tied together in a muddled mess that prioritizes perceptions of crime over the efficacy of crime policy. Thus, the placebo of crime and punishment in the modern era is indeed meant to control perception, but in a way that benefits the very people who prescribe the treatment.

Punishment operates on a placebo treatment cycle. The placebo methodology shows how punishment policies utilize similar social and cultural dynamics to control public perception and feeling toward the diagnosed problem, as opposed to treating the actual problem through effective means. Ultimately, this operates according to power, which is a similar motivation in most policy, medical and criminal alike.

B. The Placebo Effect

Conceptualizing punishment as a placebo gets even more nuanced if we theorize the placebo effect, which refers to the physical benefit that placebos can produce for patients. So far, this Article has focused on the dichotomy between efficacy and perception, arguing that punishment acts like a placebo because these criminal policies have little efficacy but instead operate to control public perception in ways that benefit politicians, law enforcement, and even the broader Prison Industrial Complex (“PIC”).⁸¹ But placebos provide more than mere psychological benefits. One of the curious miracles of placebo treatments is that if a doctor prescribes such a treatment to a patient, the patient will certainly feel better; but in some circumstances, the placebo will actually deliver a measurable physical benefit in which the patient’s body will actually improve from a biological and medical perspective. The medical literature has extensively studied this phenomenon called the “placebo effect,” in which a treatment that has little physical benefit can somewhat trick the patient’s body into activating its own powerful disease-fighting and recovery systems.⁸² This Section theorizes what this means for thinking about punishment as a placebo.

Modern medicine and sociology have come together to understand the mysteries of how the positive placebo effect works. Scientists have hypothesized that placebos release endorphins and dopamine in the brain, which have been shown to increase pleasure and decrease the feeling of pain;⁸³ these natural chemicals in the brain also impact a patient’s positive motivation and psychological outlook on their medical condition.⁸⁴ Sociologists add to this understanding by explaining the cultural and social meanings that give placebos such power.⁸⁵ First, the disease must be socially conceptualized since the diagnosis dictates the treatment. In some cultures, a headache might be the affliction of demonic forces, or it might be chemical activity in the brain.⁸⁶ Thus, the meaning and definition of the disease is the starting point to understand the cultural and social power of the placebo. Second, the doctor’s relationship to the patient also carries weight; Anne Harrington—a prominent leader in placebo studies—once characterized doctors as walking placebos because of their powerful role in shaping patient expectations.⁸⁷ If the doctor, healer, or shaman in the community is somebody whom a patient respects, trusts, and recognizes as a person of high social standing, these feelings will increase the patient’s own subjective belief that the doctor is prescribing them a treatment that is actually efficacious.⁸⁸ Third, patients’ own experiences shape their subjective social understanding and response to placebos. Research shows that patients who have had positive experiences with placebos in the past are good candidates for future placebo treatments.⁸⁹ Thus, hypothetically, if a patient had a good experience with eye of newt to treat their previous malady, this could subjectively impact their belief that eye of newt will perform well with a new ailment, or they would just as soon trust their doctor’s prescription of a crocodile tooth.

There is something about these medical and sociological factors that trigger the body’s own immune system towards positive physical results. Placebos can deliver positive medical results when treating things like the common cold and cardiovascular disease.⁹⁰ Placebos are also incredibly effective at treating more subjective medical ailments such as pain and depression.⁹¹ As it turns out, placebos can deliver positive psychological and physical results.

The placebo effect offers an interesting insight into crime and punishment as a social institution that also prioritizes and capitalizes on the subjective perceptions of the public in ironic ways that might indirectly produce public safety benefits. The crime and punishment literature has long had to grapple with two seemingly contradictory truths. On the one hand, crime rates have steadily declined in this country since the 1990s, which means we are actually getting safer.⁹² On the other hand, there is near universal agreement among criminologists, sociologists, and economists that modern incarceration policies have contributed very little, if it all, to this public safety outcome.⁹³

Scholars have tried to answer the all-important question of the factors that cause the rise and fall of crime. This Article offers a unique contribution to this literature by conceptualizing the placebo effect of punishment, which describes the indirect ways that punishing offenders over the past generation has triggered other social and institutional movements that are much more responsible for the actual drop in crime than the actual placebo of punishment itself. In other words, punishment acts like a placebo because it manipulates how the public perceives crime in ways that trigger other social and institutional behaviors that actually are responsible for the lower crime rate. While punishment may have a very small direct effect on crime, it has much more indirect impact on crime.

For instance, more prisons and the growth of the PIC might mean more police officers on the streets to fill these prisons. While the police and prisons are two separate institutions, there is tremendous practical overlap in how they complement each other and work together. Consequently, as the number of prisons across the nation skyrocketed during the 1990s prison-building boom, so too did politicians dedicate tremendous funds to hiring thousands of police officers to enforce the rising drug war.⁹⁴ In this way, punishment policies of incarceration indirectly supported the growth of police forces. And there is evidence that the presence of additional police officers on the street deters would-be offenders because it increases the likelihood that they will be caught in the act or effectively tracked down soon after committing a crime.⁹⁵ Similar to a placebo, punishment policies did not contribute to actually treating the disease of crime; instead, they triggered other institutional behavior to increase police presence in a way that more effectively lowered the crime rate.

In some places, there might also be a self-fulfilling prophecy for communities that feel safer and employ social behavior that then makes them safer. Pedestrian traffic is a well-documented feedback loop in this regard, because people who feel that their neighborhood is a safe place to walk will choose to walk more places during day and night hours; in turn, this increased pedestrian traffic means that there are more eyes, ears, and potential witnesses which deter criminal behavior in these neighborhoods.⁹⁶ It also might be interesting to theorize how punishment policies indirectly impact other social behaviors that have been linked to lower crime rates, such as increasing employment and high school graduation rates,⁹⁷ among others.

These few paragraphs are not meant to be exhaustive and represent a short foray into digging into the empirics of crime policy to understand how punishment policies might be impacting social and institutional behavior to indirectly have positive impacts on the social ill of crime. Just as placebos operate according to biological functions that are triggered through a patient’s social understandings and expectations, so too can punishment be theorized as a treatment to the social ill of crime that triggers beneficial behaviors that produce lower crime rates.

* * *

As a closing thought to this Part, I implore readers to not lose the forest for the trees. This Article has thus far argued that mass incarceration policies can be conceptualized as a placebo treatment that while not efficacious, may nevertheless deliver benefits to public perception. But admittedly, analogizing criminal punishment to medical placebo treatments is not a 1:1 comparison; nor is it a perfect analogy that is seamlessly intuitive or foolproof to the avid intellectual. For example, comparing politicians, police, and others to doctors leaves a bit to be desired given the unique doctor/patient relationship that may not be fully captured in the punishment context. Some might find that analogizing crime to a social disease is also problematic and might struggle to make the connection between an individual’s reaction to a placebo treatment and society’s reaction to the institution of punishment. But the frustration that comes from trying to perfectly fit an octagon peg into a round hole misses the fact that the shapes are similar enough to make observations that might be shared by both. Sure, it doesn’t fit perfectly, but they are indeed from the same family and the same logic of design.⁹⁸ Like all analogies, theorizing punishment as a placebo helps us conceptualize and understand similar principles in seemingly unrelated subjects.

The placebo methodology that this Article builds must be judged according to its ability to highlight latent truths about punishment policies. Consequently, this punishment as placebo analogy should be justified because its theoretical and explanatory contributions outweigh its imperfections around the edges.

II. Mass Incarceration as Placebo

The theoretical grounding of placebo punishment policies is perhaps most impactful in how we should reconceptualize the study and discussion of mass incarceration. Although the placebo methodology could be applied to many case studies of different punishment tools,⁹⁹ mass incarceration is the “beating heart”¹⁰⁰ of the criminal punishment system. It is the prison, as an institution, that is at the center of the wider penal imagination and has been imbedded with so much social and cultural meaning as to how we separate society from dangerous “others.”¹⁰¹ While the national population of incarcerated persons is declining,¹⁰² the carceral system still boasts physical control over 1.9 million people.¹⁰³ Nearly 7 million are surveilled under a growing e-carceration and parole population.¹⁰⁴ And the carceral state extends even further to the experiences of the 113 million individuals who have had close relatives incarcerated at some point in their lives.¹⁰⁵ In effect, one-third of Americans have been impacted by the wide and unforgiving reach of mass incarceration.

The placebo methodology as applied to mass incarceration argues that it is best understood as a set of laws and policies meant to control public perception of crime, playing on the subjective emotions of fear, safety, and the ever-elusive ideal of justice. Much has already been written about the failed efficacy of mass incarceration policies to improve public safety,¹⁰⁶ but this misses one of the foundational principles of the policy’s placebo: regardless of its actual effects, it still delivers costs and benefits based on how it controls public perception of crime.

This Part builds on the existing mass incarceration literature by discussing whether the benefits of perception are worth the costs of mass incarceration. Section II.A develops the history of mass incarceration through the lens of policies that would assuage public fears, and Section II.B continues by discussing the policies’ ineffectual impacts on public safety. In light of these historical and modern conclusions, Section II.C argues that the placebo methodology more accurately captures the intent and impacts of mass incarceration policies.

A. Research and Development

The history of fear and mass incarceration in the modern era begins with the unprecedented crime wave in the 1960s and 1970s. During these two decades, violent crime rose by 271%, burglary and robbery rose by 231% and 318%, respectively, and similar increases were reported for sex crimes and property crimes.¹⁰⁷ This fear of the “other” was further cemented by studies during the 1970s showing that a small number of offenders were responsible for a high proportion of offenses committed.¹⁰⁸ Further, criminological studies began persuading lawmakers that rehabilitation did not work consistently¹⁰⁹ and that high levels of recidivism would continue without more incapacitation efforts.¹¹⁰

The Nixon administration, for its part, was driven by its own fear of political opposition, namely from recently empowered African Americans after the Civil Rights movement and anti-war “Hippies,” two groups that threatened Nixon in national politics.¹¹¹ Thus, Nixonian criminal politics was defined by convincing the nation that “the whole problem is really the blacks . . . The key is to devise a system that recognizes this while not appearing to.”¹¹² While there was already a racialized fear of the dangerous “other” imbedded in American culture,¹¹³ the rise in crime during the same era as the Civil Rights and anti-war movements prompted an unprecedented fear of crime that was directed towards certain communities.¹¹⁴

By targeting these “others”—groups that were outside of the mainstream social and cultural understandings of American white middle-class identity—Nixon captured the populism of his era. Social scientists have long recognized that the fear of crime became a defining “cultural theme” during this era that called for policies that “aim[ed] to reduce fear levels.”¹¹⁵ Empirical criminologists of the time were baffled by these changes. The mass incarceration policies developing before their very eyes had little to do with actual crime control or preventing victimization but were instead driven by fear and myth that traded on racial and cultural stereotypes emerging from the anxieties of suburbanite imagination and political rhetoric.¹¹⁶ And this penal populism of fear has been carefully nurtured as a winning political strategy ever since.¹¹⁷ National and local actors alike adopted this tough-on-crime strategy, promising more punitive punishment as a way of promising to reduce fear and anxiety related to crime.¹¹⁸ Consequently, fear was increasingly used as a justification and catalyst for harsher punishments, and politicians were all too willing to stoke, control, and benefit from these public fears.¹¹⁹

B. Treatment Efficacy

Although controlling public perception and fear of crime was one of the primary drivers of developing mass incarceration policies, their efficacy in reducing crime should not be ignored. The mass incarceration policies of the 1980s and onward have enjoyed association with lower crime rates because crime has generally gone down over the past thirty years.¹²⁰ But there is debate among criminologists and economists about the actual correlation between incarceration rates and crime rates.

The weight of analysis tends to agree that there is some correlation between the population of incarcerated persons and the crime rate, but the connection is minimal.¹²¹ In just twenty years, between 1980 and 2000, the incarceration rate exploded by over 300%.¹²² And yet, this treatment has yielded marginal utility. For example, Steven Levitt found that increased rates of incarceration in the 1990s were only responsible for 25% of the drop in crime during that time.¹²³ Don Stemen found that between 1980 and 2000, every 10% increase in the prison population was only responsible for a 2% to 4% decrease in the crime rate.¹²⁴ Additionally, many others have come to argue that there is a much lower correlation; they posit that the exploding incarceration rate was only responsible for a 2% to 15% decrease in crime rates.¹²⁵ But even the high watermark of a 25% impact should make us question whether such a use of resources is justified when these resources could be reinvested in programs that have been proven to be far more efficient at lowering crime rates.¹²⁶

Another group of scholars refutes the above by arguing that there is no statistically significant correlation between the increase in the population of incarcerated persons and the decrease in crime.¹²⁷ Starting in the 1990s, the National Criminal Justice Commission found that there is “little or no correlation between rates of crime and the number of people in prison.”¹²⁸ Twenty years later, during a time when the incarcerated population reached its height,¹²⁹ Jeffrey Fagan and Tracey Mears found that increasing the number of people incarcerated resulted in “stable if not higher levels of crime.” They decried the lack of commensurate public safety benefit for the ever-increasing rates of incarceration.¹³⁰

A smaller group of scholars have come to even starker conclusions, arguing that mass incarceration has had negative impacts on public safety, causing a criminogenic effect. Don Stemen found that when incarceration rates increase past 325 to 492 inmates per 100,000 people (of which many states have far surpassed), crime rates begin to rise.¹³¹ Francis Cullen, Cheryl Jonson, and Daniel Nagin performed a systematic review of multiple meta-analyses of the impacts that incarceration has on crime rates and reported that in the most compelling studies, incarceration was not associated with any deterrent effects but instead increased recidivism rates anywhere from 7 to 14%.¹³² These authors have linked this data to a number of potential explanations since incarcerating large numbers of people can depress economies, threaten social network formation, and politically disenfranchise communities, which can then lead to criminal behavior.¹³³

On the other end of the spectrum, there are scholars that have defended the status quo, arguing that mass incarceration policies in the 1990s were causally related to lower crime rates. This literature is most associated with the harshest criminal sentencing policies, such as the three strikes laws that went into effect during that time.¹³⁴ But even among these scholars, there was growing unease about the continued growth and marginal impacts of the carceral state. The intellectual and empirical journey of John DiIulio, Jr. illustrates this point. In 1996, he argued that prisons were a bargain since locking up a person for “about $25,000” per year in the prison system saved society from the potential murder and mayhem he or she would otherwise be committing on the streets.¹³⁵ As a Democrat, he channeled bipartisan fears in the 1990s, stating that “a wave of young, violent, mostly minority, remorseless juvenile delinquents, known as super-predators would plague the country and increase crime rates” without harsh incapacitation measures.¹³⁶ Yet only a few years later in 1999, he realized that mass incarceration had reached the limits of its utility. He argued that locking up more people would not have any further public safety benefit and that it was time to shift the penal focus to drug treatment and effective parole programs.¹³⁷ Unfortunately, politicians benefiting from mass incarceration were not so keen to heed his advice.

These seemingly conflicting streams of data can be best harmonized with a general model of marginal utility across four stages.¹³⁸ At the first stage, studies have shown that incarceration is most effective as a deterrent and incapacitation tool when the crime rate is high.¹³⁹ For every unit of punishment, you get a higher payoff in crime reduction. At the second stage, punishment suffers from the law of diminishing returns, in which every unit of punishment still achieves a measure of crime reduction but much less than the previous stage.¹⁴⁰ At the third stage, the crime rate levels off, during which every unit of punishment does not achieve any payoff in crime reduction.¹⁴¹ At the fourth stage, there is an inflection point at which punishing offenders actually increases the crime rate.¹⁴²

Like many medical treatments, law and policy can have similar diminishing returns over time as social problems and disease adapt in the same way that all organisms adapt and evolve in the physical and social body. As a result, a treatment program must be adaptive to long-term illnesses and should be administered differently in different phases.

These statistical studies, cost-benefit analyses, and other tools of administrative expertise have been abandoned in the criminal punishment regime.¹⁴³ There are decades of data to which this Article cannot do justice that question and prove the inefficacy of mass incarceration policies to improve public safety. Thus, a policy that fails to track and account for actual impacts on public safety should be understood as prioritizing the placebo methodology’s focus on tracking and accounting for public perception of crime, which is all too vulnerable to political power, abuse, and perverse incentives.

C. Placebo Responses

To summarize, mass incarceration policies do not deliver on their public safety promises and were never solely designed to do so. Out of a culture of fear, myth, and superstition, our society decided to pivot from careful, rehabilitative carceral efforts to a mass incapacitation effort to satisfy collective retributive cultural morality and expressive condemnation of the “others” who we feared.¹⁴⁴ We now benefit from thirty years of data that shows that mass incarceration policies are no longer (and may never have been) effective at lowering crime rates. Yet we still choose to punish harshly and ineffectively. This Article concludes that modern punishment can no longer be justified under the veneer of public safety. Rather, it is motivated by controlling public perception and fear of crime in a way that subjugates entire communities to the benefit of those in power. This Section further cements the data connecting medical and social placebos in the punishment context. First, placebos enjoy the largest impacts on patient outcomes when the patient is experiencing the highest amount of symptoms. For example, placebos deliver the highest amount of pain relief when the patient is experiencing the most amount of pain.¹⁴⁵ This makes intuitive sense; when somebody is experiencing pain, their main concern is finding something to subside that pain, so they are more susceptible to and even desperate for any treatment that a trusted doctor tells them will provide relief. The subjective aspect of pain means that the placebo’s effects are judged in relation to the level of pain the patient is suffering. The higher the pain, the more the placebo relieves.¹⁴⁶ The very nature of placebos means that they do not deliver an objective and consistent level of psychological and therapeutic benefit; it is all relative to the patient’s perception of their problem.¹⁴⁷

This finding also makes intuitive sense when considering the placebo methodology approach to punishment. Public support for mass incarceration policies was highest when the “disease” of crime had the most crippling impacts on public fear. Data shows that public support of harsh tough-on-crime policies was highest from the 1970s through the 1990s but has declined as of the late 2000s.¹⁴⁸ Criminologist Lisa Miller has documented this by studying public perception of crime and concluded that politicians’ ability to manipulate public perception of crime for political gain is highest when violent crime rates are high; this power of perception sharply declines when violent crime rates are lower.¹⁴⁹ To simplify, the public enjoys a higher positive reaction to the placebo treatment of mass incarceration when its fear of crime is at its highest. As the disease subsides, so does the effectiveness of the placebo.

Second, placebos also share in the law of diminishing returns. This is described as a “placebo sag” in the medical literature to indicate that there is a danger of treatment complacency.¹⁵⁰ Although patients may receive tremendous therapeutic benefit from Placebo A, the benefit wanes over time as patient perceptions of what they believe to be an efficacious treatment continues to decline. It is an understandable psychological cycle if a patient perceives Placebo A as not having the same effect as it did a month ago; thus, their future expectations based on their own experience contribute to the sag. Continuing to prescribe Placebo A will not deceive patients forever—or society for that matter.

The support for mass incarceration has also started to sag. Indeed, this goes a long way in explaining recent movements for criminal justice reform;¹⁵¹ after over thirty years of mass incarceration policies, the public is starting to realize that the placebo is losing some of its luster. There has been a steady drumbeat toward reform, but this must be tempered with continued fluctuation in public perception of crime. When the public is confronted with political and media messaging that suggests a spike in crime, public support for harsh criminal punishments returns in certain segments of the social body.¹⁵² This ever-changing landscape of public perception—and the powerful harbingers of doom that continue to press these “fear” buttons—is best understood as a placebo method of controlling public perception to maximize political gain.

Finally, perhaps the most consequential aspect of placebo treatments is that placebos can indirectly have a negative impact on a patient’s health by giving them a false sense of healing. When a patient takes a placebo treatment, three things can happen regarding the patient’s actual physical health. First, the placebo makes the patient feel better, which has a positive impact on the body’s ability to physiologically fight the disease and the patient actually gets better. Second, the placebo has some effect on the patient’s feelings but has no impact on the body; in this scenario, the disease is allowed to run its natural course and may result in the patient’s natural immune system fighting off the disease and the patient improving. Third, take the same scenario, but the disease runs its natural course, resulting in the patient getting worse.¹⁵³ As a result, placebos can indeed be dangerous depending on the seriousness of the affliction. All the while, the patient believes they are receiving an efficacious treatment and forgoes seeking other treatments that might be more effective.

This third scenario has important ramifications for the status quo and how we chart future treatments for the social problem of crime. If we are indeed in an era in which mass incarceration has a criminogenic effect,¹⁵⁴ then the placebo is truly lulling society into a false sense of feeling better. Because mass incarceration policies operate in the modern era primarily as a placebo, this comes at the expense of the disease of crime being permitted to run its natural course and make us all worse off than we would otherwise be under a different punishment regime.

III. Socio-Medical Ethics and Justifications

The study, theory, and practice of punishment can benefit from the same reflection that placebos have sparked in medicine, but the synergies between these fields still spark questions of ethics and justifications. This Part builds on this theme by applying considerations of socio-medical ethics to frame and answer whether placebos in the punishment sphere can be justified. Like medicine, these answers are nuanced and context specific.¹⁵⁵ There are indeed a number of different ethical justifications to consider, but this Part focuses on the issues that carry the most insight for future discussion inside the punishment literature. This Part also focuses on perhaps the most important question of punishment theory and answers in the negative: Is punishment justified under the placebo methodology?

Section III.A considers perhaps the most important question in the placebo methodology, which is the harm principle of punishment when considered against the “do no harm” principle of medicine. These different approaches are important when considering the harm and social costs that punishment wreaks across entire communities. Section III.B explores the important ethical differences between the doctor-patient and politician-constituent power dynamics. Benevolent deception and medical expertise are at the heart of the doctor-patient placebo treatment schedule, but such benevolence and policy expertise are missing from the politician-constituent power dynamic. Section III.C discusses the ethics of experimentation with placebo research toward finding efficacious treatments. This contributes to how we might view the dark past of experimenting with harsh punishments and informs us towards a more ethical future. Section III.D covers the economics of placebos and their continued popularity and use in the medical field. Just as economic markets have a way of shaping how placebos are prescribed by doctors and perceived by patients, so too can the economics of punishment shape our social and cultural understandings in ways that can lead toward a different punishment regime. In turn, each vignette also considers policy solutions that seek to remedy the ethical and practical problems of punishment placebos and their overreliance on controlling and even manipulating public perception.

The discussion and solutions proposed throughout each Section are not magical or mystical cures that can solve all of the many problems and social harms of mass incarceration. These realities and strategies of punishment reform—which are unique to placebo understandings of punishment—are meant to mitigate and not propagate. The most important concern is whether these discussions and solutions themselves become placebos, proposed and advocated by a school of scholars as a way of assuring and placating more revolutionary thinkers away from pursuing transformational work.¹⁵⁶ Getting closer to equitable justice is worthwhile, and trading among lesser evils is often the difficult choice scholars and policymakers must pursue to achieve incremental progress that is transformative in scope.¹⁵⁷

A. Placebos as Harm

Although this Article focuses on the synergies between the medical field of placebos and the policy design of mass incarceration, there are important differences that shed light on the theoretical and practical framing of punishment. Perhaps the biggest shortcoming of the placebo methodology of punishment is the difference between how these fields view harm.¹⁵⁸ By recognizing these shortcomings, this Section seeks to further refine and tailor the placebo methodology to the specific attributes of the punishment context.

The medical field’s approach to “do no harm” is an important foundational ethic upon which the entire institution is built. This principle traces back to the Hippocratic Oath¹⁵⁹ and undergirds the purpose of the entire medical field. This is of prime importance when applied to placebo treatments. Placebos, by definition, must be either inert or have active ingredients that will not harm the patient.¹⁶⁰ At best, they may help the patient; at worst, they will do no harm.¹⁶¹

The opposite is true of the punishment field, which is specifically designed to impose harm on the criminal offender.¹⁶² This harm has come in many forms throughout history,¹⁶³ and modern criminal punishment continues to take away some aspect of the offender’s liberty by exerting government control over the offender’s body, including incarceration, e-carceration, and parole.¹⁶⁴ Capital punishment, of course, imposes the ultimate harm upon the offender by ending their life. This is not merely an accidental byproduct; it is the intended purpose of punishment.

This requires at least two analyses that can be bifurcated into theoretical harm and practical harm, both of which are important to answer whether these harms of punishment might be justified under the placebo methodology. On the theoretical side, we must remember the conceptual framework outlined in Part I. If society is like the body, and crime is like a disease, then treating the disease benefits the body at the expense of the disease. If punishment were effective, it would serve the same purpose as medicine by treating and getting rid of the disease of crime to the benefit of society. This becomes more problematic when this social disease is being directly caused by humans in society. As discussed above, this need not require inhumane treatment to punish and/or rehabilitate them. Thus, punishment is intended to impose some level of accountability on the offender just as medicine is intended to treat infirmities and the body of society benefits.

Under this theoretical treatment, the placebo policies of punishment become problematic because punishment is used to deliver harm to offenders regardless of any actual benefit to society. The punishment placebo would not merely be inert as in the medical context but would be delivering harm to a large segment of society—primarily poor people of color¹⁶⁵—for the mere psychological or therapeutic benefit of everybody else and for the political benefit of the powerful. Delivering this level of theoretical harm would not be justified under utilitarian or deontological justifications. The utilitarian might be persuaded, but ultimately must consider the costs and benefits of the policy to understand the greater good. Here, placebo policies are pitting the minimal benefits of manipulating public perception against the social costs of imposing harm on millions of people and tens of millions of families.¹⁶⁶ The level of harm hardly seems justified according to the minimal benefits and the perverse political incentives behind it. Kantian deontologists would also oppose a placebo justification, since this school of thought rejects using a person as some means to achieve a broader social goal.¹⁶⁷ But modern retributivists may still justify a placebo punishment if it indeed makes society feel that moral justice has been paid to the offender.¹⁶⁸

On the practical side, the placebo of punishment policies results in actual harm being visited upon entire communities that face the brunt of mass incarceration, which adds further consideration to the utilitarian balancing above. It is not enough to recognize the tremendous harm done to the individual offender during and after their time incarcerated, but these harms extend to their communities as underappreciated externalities.

Mass incarceration policies have devastated economic growth in these communities.¹⁶⁹ Working-age men and boys are often the most targeted due to their involvement with criminal behavior; when these communities are hollowed by the incarceration of these men, small and large businesses alike are less likely to invest and survive in these communities.¹⁷⁰ And even when incarcerated persons are on parole or get out of prison, they face an uphill battle when finding a job and are often paid less than their non-offender competition.¹⁷¹

Social networks and family formation also suffer objectively negative outcomes from mass incarceration. In heterosexual relationships, it becomes harder for women to find suitable mates if many potential options are incarcerated or have difficulty assimilating back into society after being incarcerated.¹⁷² Incarceration also leads to the breakdown of strong family dynamics, since so many incarcerated persons are held in places that are geographically far away and thus prevent in-person visits from their family. In addition, the exploitative prison-phone industry creates cost prohibitive conditions for many poor families to stay in touch over the phone.¹⁷³ Also, many incarcerated persons are parents, which has negative behavioral and educational impacts on their children who grow up without them.¹⁷⁴

There are also tremendous negative political impacts on these communities. Voting-age incarcerated persons are not able to vote during their incarceration. In some jurisdictions, these persons are permanently disenfranchised even after their incarceration.¹⁷⁵ Not only does this have measurable impact on elections, but it also contributes to the individual offender’s sense of self as a nonpolitical actor. Political scientists and sociologists have shown how affected communities have developed a sense of isolationism from civic discourse.¹⁷⁶ This impacts the politician-constituent relationship and has served to undermine the legitimacy of the criminal legal system as a whole in these communities.¹⁷⁷ Further, as explained above, mass incarceration can have a criminogenic effect if it contributes to community perceptions of illegitimacy that following the rule of law has little benefit.¹⁷⁸

This short summary of actual harm caused by the placebo of mass incarceration policies cannot be justified under any view other than those that recognize mass incarceration’s intent to maintain political power and use that power to subjugate communities.¹⁷⁹ If the goal is to make the streets safer, that goal has failed. If the goal is to maintain existing power dynamics, then placebos in medical and punishment contexts are quite effective at controlling perceptions of crime and disease and cementing the doctor and politician as the conduit through which things will be perceived as getting “better.”

Perhaps Vincent Chiao said it best: “To rely on criminal punishment solely . . . to make other people feel safer, even when doing so does not make them actually safer” is not justified because it is hard to see how these people’s subjective feelings “could be sufficiently important to justify imposing such serious costs on others.”¹⁸⁰

B. Deception Versus Consent

Placebos also introduce the ethical dilemma in medical treatment of utilitarian notions of deception, which is all too relevant to the punishment policies of the modern era. In the broader social context, lying, fraud, and deception are viewed as unacceptable social behaviors that can emotionally hurt and financially injure a victim.¹⁸¹ But like most social mores, there are exceptions to this general rule that might be applicable to the placebo punishment context. For instance, intentionally lying might be justified if it produces beneficial results and emotions or even serves as a lesser evil to avoid more harm.¹⁸² Indeed, we paternalistically deceive our children;¹⁸³ we might sugarcoat the truth to shield the feelings of a spouse or loved one; and even in the cold world of legal ethics, it is ethical to intentionally withhold information from a client for their benefit.¹⁸⁴

There are at least three ethical considerations that, when considered together, might be used to justify placebo treatments in the medical field that are found lacking in the context of punishment policies. The first considers the expertise of the person in power. In the medical field, placebo practitioners are medical experts who can correctly dose and administer placebos as a treatment specialized for each individual patient.¹⁸⁵ Doctors prescribe placebos because they often follow the science showing how effective they are in assuaging subjective patient ailments such as pain, depression, and other complaints.¹⁸⁶ Indeed, it is this very expertise, built on years of experience and advanced studies, that supports any potential deception. The only reason the doctor knows such a treatment will work is because they have likely used these placebos in the past to provide therapeutic treatment and have tracked the progress of past patients in conjunction with studying the scientific literature.

To illustrate the importance of expertise and how it implicates trust, contrast the following situations: first, a doctor prescribes a placebo to a patient; second, a person pretending to be a doctor prescribes a placebo to a patient. Deception is taking place in both scenarios, but most would admit to being more comfortable with the former. If a doctor prescribes a placebo, there is a certain level of trust on the part of the patient toward the doctor that the doctor knows what they are doing; a patient may not like the doctor’s decision to prescribe a placebo, but many would feel comfortable trusting the doctor’s experience. In the latter situation, the ultimate medical result might be the same, but many would still be uncomfortable since the fake doctor has no expertise whatsoever. The patient received a placebo in both situations but would no longer have the same trust and understanding of the treatment in the hands of a fraud. Even if the patient experienced a positive placebo effect in both situations, the expertise and trust in the doctor in the first situation seems more justified than the deception and lack of expertise in the second situation.

In the punishment context, there is a much looser sense of expertise from our legislators and executive actors who are prescribing and delivering the treatment of punishment and mass incarceration to society.¹⁸⁷ Politicians are not experts and many are not even former practitioners of criminal policy and punishment.¹⁸⁸ They are lawyers, businesspeople, career public servants, and the like that bring generalist viewpoints to a host of different issues. Rachel Barkow opens her book Prisoners of Politics with the stark statement that “[w]e do not rely on experts or use studies and rational assessment to minimize crime” but instead base criminal policy “on emotions and the gut reactions of laypeople.”¹⁸⁹ This is a far cry from nearly every other consequential policy area, including public health, the environment, financial institutions, and other complex social issues.¹⁹⁰ Instead, political incentives, penal populism, and fear of the “other” all rule supreme in crime policy.¹⁹¹

Practitioners like police and prosecutors are a bit more mixed. There are still many who subscribe to outdated and disproved methods such as the broken-windows theory,¹⁹² predictive policing,¹⁹³ overcharging and stacking,¹⁹⁴ and pushing for harsh sentences for incapacitation purposes. However, there are several more progressive practitioners who are challenging the old guard and trying to use emerging data to facilitate more effective policies.¹⁹⁵ This is the double-edged sword of expertise, because both of these camps can be considered to be “experts” due to their level of practical experience. Just like doctors who prescribe a large number of placebos to patients with the hope that it will have a placebo effect, these practitioners on the ground are prescribing punishment policies that they hope will have some effect on public safety, whether directly or indirectly. And we the public have some sense of trust in these practitioners, in part, because of their expertise.¹⁹⁶ The takeaway from this analysis is that there can be no placebo-like justification for non-expert legislators who enact criminal statutes, but there may be some argument that the expertise of police and prosecutors should be given some weight.

The second ethical consideration that might justify deception is the intent of the person in power, which also highlights stark differences between the medical and punishment fields. Many doctors prescribe placebos out of benevolent care only when they view it to be in the best interests of the patient.¹⁹⁷ This gestures toward the “classical paternalistic paradigm that dominated traditional medicine.”¹⁹⁸ Like parents who benevolently guide, deceive, and withhold information from their children because of large gaps in information, intellectual ability, and emotional stability, the traditional practice of medicine justified treatments under a paternalistic view of patients.¹⁹⁹ Not only does this ethical justification substantiate the earlier requirements of expertise, but it also highlights the necessary selfless intent of doctors to justify deception. Parents deceive their children most often for the sole benefit of the child, and while there are indeed some that might use such deception for their own parental gain, this is often not accepted as best practice. Similarly, doctors may be justified in using benevolent deception if the primary purpose is the sole benefit of the patient. As argued above, this is a complex question in which a doctor (or politician) must consider the full range of costs and benefits of deception. But the ultimate takeaway is that deception is partly justified by benevolent and selfless intent.

Using this methodology to analyze politicians and their role in punishment leaves much to be desired. In a perfect world, politicians would be public servants who seek to serve their constituents’ best interests, but political theory has long disproved this romanticized ideal.²⁰⁰ Lawmakers are not bound by a comparable code of medical ethics where constituent interests are placed at the forefront.²⁰¹ They do indeed seek to serve their constituents but are also incentivized into doing what is necessary to maintain their power.²⁰² There may be an argument that politicians believe they are serving society by assuaging fears with placebo punishment policies if they believe that fixing the actual crime rate is not as important to public health as controlling perceptions of crime. However, as argued above, there are simply too many self-interested incentives involved in the tough-on-crime movement from those wishing to maintain their power. The lies that politicians maintain about mass incarceration, the manipulation of public fear, and the withholding of the truth from the public cannot be justified under the medical ethics of benevolence,²⁰³ but should be characterized as maleficent and at least partially self-interested deception that wreaks havoc in the form of underappreciated social costs.

Yet there is some nuance to consider regarding intent among lawmakers, police, prosecutors, and others who prescribe and deliver the placebo treatment of punishment. As in the substantive criminal law, we assign blameworthiness according to a person’s level of intent for their wrongdoing. The highest level of culpability is committing an act with purpose, meaning that it was the person’s conscious desire to commit the act or to procure the desired result of the crime.²⁰⁴ Next comes knowledge, which describes a person who has near certainty that their action will procure the result of the crime.²⁰⁵ Then there is recklessness and negligence, which capture situations in which a person knows or should have known that their actions will procure a certain result.²⁰⁶ There are indeed actors in the criminal legal system who are purposive or at least have sufficient knowledge that these punishment policies are ineffective but nevertheless have some placebo effects towards public safety. These are the most culpable actors in the mass incarceration crisis. But there are others who are less culpable but still responsible for contributing to the crisis. These decisionmakers might honestly believe the status quo is an effective system that they seek to propagate and expand. At best, these lawmakers, law enforcement officials, and prosecutors can be said to be reckless or even negligent because they are consciously disregarding the danger of these policies or really do not perceive any dangerousness but nevertheless should have known the dangerousness of these policies. Given the amount of scholarship, the accessibility of experts, and the continued deterioration of the criminal legal system, these decisionmakers are at best negligent, and at worst purposive, in their culpability of the mass incarceration crisis.

The third ethical consideration that might justify deception in the use of placebos is the issue of consent. Modern medicine has largely departed from the benevolent paternalism of the past and has been sharply redefined towards a progressive ideal that fosters partnership between doctor and patient.²⁰⁷ This type of dynamic has restructured the entire culture of medical treatment, in which doctors are resources of information that a patient can consult; by explaining complex medical information and treatments to their patients, doctors can partner with their patients and ultimately allow the patient to make the final decision on what treatment they receive. Thus, the modern ethics of prescribing placebos is complicated by the issue of consent.

This ethical dynamic is resolved through a fascinating aspect of placebo treatments, namely the consent of self-deception. Patients may desire to gain the benefits of placebos or other unverified alternative medical treatments for the sake of achieving a larger health goal.²⁰⁸ Perhaps an active medication is known to have side effects, whereas a placebo might deliver similar therapeutic relief without the side effects. Or perhaps active medication is cost-prohibitive to patients whereas placebos are more cost-effective for the relative benefit the patient receives.²⁰⁹ Medical ethicists have considered these possibilities and ultimately come out in favor of patient discretion; in other words, patients should have the power and control over their treatment to give doctors the green light to deceive them.²¹⁰ Under such treatment plans, the patient will never know which treatment is a placebo or when the deception is coming. That way, they can still enjoy the ignorant bliss of placebo benefits. This adds yet another wrinkle in an already complicated ethical space. As opposed to the principle of informed consent, in which the patient must consent to each separate treatment, a doctor-patient relationship may also be formed on the basis of general consent under which the patient consents to the doctor or the overall treatment plan.²¹¹ This obviates the need to consent to each individual treatment and instead gives the patient the power to consent to the doctor and all of their subsequent methods.²¹² If patients want to be deceived, and give consent to be deceived,²¹³ placebos might also be justified under a consensual doctor-patient relationship.

The self-deception model of consent is an interesting consideration of collective cognitive dissonance and might also have some explanatory value in placebo punishment policies. Let us first consider that most Americans want criminal justice reform.²¹⁴ There may indeed be much disagreement among these constituents about what such reform would look like, but there is a growing dissatisfaction. But like most political opinions, these Americans are looking for a type of general consent as opposed to informed consent. These constituents simply want the problem to get better and are not necessarily invested in each reform proposal that might come to the table. This is our system of republican government: we vote in politicians, thereby giving some form of majoritarian consent, and we expect them to fix the problems we have elected them to fix. Whether it be sentencing reform, decriminalization of drug crimes, or defunding the carceral state and reinvesting in other social programs, the average American voter is not concerned with the specifics of how politicians address these problems.

The public has accepted the diagnosis of the social problem of crime, and they are giving general consent to the overall treatment plan of mass incarceration with little care or concern about the overall placebo of the treatment. This is quite different from saying that the public wants to be deceived, but the political system allows for some consent for elected officials to deceive us, even after the public collectively understands that the criminal legal system is broken.²¹⁵ A political theory of self-deception, as realized through the placebo methodology, might be the strongest case that justifies politicians intentionally deceiving the public through mass incarceration and punishment placebos. If the public implicitly agrees to deception, politicians should be allowed to deceive.

Most considerations in this Section have failed to justify the use of placebo policies in the punishment context, and these medical ethical concerns can also inform some future policy safeguards. Whatever the next tectonic shift in carceral policies may bring, we must be aware of the placebo nature and politics of these policies. Politicians will support what makes voters feel better; for the Left, this may look like progressive policies that make them feel like criminal justice is no longer targeting certain communities; for the Right, this may look like less costly and more efficient policies that make them feel safer and more fiscally responsible.²¹⁶ There is indeed political will to make a change, as Red and Blue states across the country have experimented with new punishment policies,²¹⁷ presidential administrations from both parties have pushed through reformist legislation,²¹⁸ and grassroots organizations have become part of the mainstream decarceration movement.²¹⁹ But even with this bipartisan support to change something about the system, will the resulting change be yet another placebo? The next generation must not make the same mistakes of our past by settling for yet another placebo punishment policy.

There are no easy answers to what appears to be an insurmountable social and cultural problem based on political incentives and unethical behavior. An informed consent punishment model would be an interesting thought experiment, requiring partnership and active participation between politicians and constituents before any new criminal law, punishment, or reform was adopted. However, such an informed consent model would be practically impossible and would also theoretically fail to address the problems of punishment placebos. Putting so much power in the hands of uninformed constituents carries the risk of even more criminal legal policy falling prey to fear-based penal populism.²²⁰ Providing the public with more information, facts, studies, statistics, and so forth in an effort to educate the masses through public service announcements is unlikely to decouple the social and cultural feelings of punishment and its connection to safety. Using direct voter ballot initiatives is another interesting proposal because they have had success in legalizing marijuana and banning forced prison labor,²²¹ but have also maintained capital punishment²²² and a number of harsh sentencing laws.²²³ There is simply no safeguard for people’s fear and none for politicians’ penchant for exploiting it.

This Section has leaned heavily into diagnoses and has been light on effectual treatments. The ethics of social deception of placebo punishment policies cannot be justified through the same traditional medical lens of paternalism nor the benevolent power that doctors use to maintain public health in the community. Neither can placebo punishment policies be fully justified through modern medical ethics of informed consent, but the concept of general consent and self-deception paints a dismal picture of the American public’s apathy toward specific involvement in criminal justice. This leaves hope that further examination of placebo ethics can lead to some policy interventions, especially when considering the infrastructure of expertise below.

C. Experimentation Ethics

The placebo ethics of scientific experimentation introduces another tool that shifts the discussion of punishment theory and mass incarceration. The medical field often uses placebo trials as a methodology for finding treatments that are more effective than their predecessors, which justifies the use of the placebos toward the gain of medical knowledge. This Section uses this ethical justification of placebos to explore the unjustified experimentation of punishment policies and mass incarceration.

Starting with the medical context, double-blind placebo studies are the gold standard in the experimental setting to determine the efficacy of pharmaceutical drugs.²²⁴ There are at least two groups²²⁵ of consenting patients,²²⁶ both of whom are suffering from a disease or ailment that serves as the subject of the treatment. The first blind describes the patients who are unaware of what treatment they are receiving. The first group is given the drug being tested by the trial, while the second group is given a placebo.²²⁷ The second blind describes the researchers themselves. To avoid the power, bias, and favoritism of researchers who are administering the treatments,²²⁸ the researchers are also blind to which group is getting the drug versus placebo treatments. Thus, the efficacy of the drug being tested is the positive difference between the medical outcomes of the drug group and the placebo group. If both the drug group and placebo group enjoy physical improvements, isolating the positive impact of the placebo is paramount to determining the actual effectiveness of the drug apart from any placebo effects.²²⁹

The utilitarian outcomes of experimenting to develop more effective medicines justify the necessary deception of the placebo groups along the way. If the placebo group knew they were getting the placebo and the drug group knew they were getting the active drug, the positive placebo effects would be lost and would jeopardize the utility of the study.²³⁰

Medical ethicists have raised concerns based on deontological grounds of the duty of doctors to always provide the best available care.²³¹ This goes past the Hippocratic Oath to do no harm and requires doctors to provide the best care possible based on the inherent worth of a human life and its connection to individual health. These ethicists have criticized placebo trials as exploitative and have argued that it is inherently unethical to evaluate new treatments when there are already proven treatments available.²³²

For example, if a research trial is trying to find the next generation of treatments for a non-deadly disease, such as depression, a placebo trial may be organized. The new drug to be tested is X, even though Y is already on the market and available to patients. Y has an efficacy rating of one, which is quite effective at helping depression patients. However, the placebo group will not receive any effective treatment for their depression. Thus, their depression may get better or worse based on the placebo effect or the natural course of the disease. The drug group receiving X, on the other hand, sees a great improvement, measured at an efficacy rating of two. This result is traditionally seen as a success in medical science because X will benefit countless future depression patients, but it came at the expense of the placebo group who all the while could have gotten better if they had been prescribed Y.

In the punishment placebo context, there are many lessons to learn from medicine’s more developed and sophisticated rules of ethics. Placebo methodologies have long been used in sociological and policy studies to determine the efficacy of criminal law and policy when compared to the status quo or an inert placebo policy.²³³ These types of experiments and analyses have also been a hallmark of Our Federalism.²³⁴ The Brandeisian ideal of state laboratories has yielded new innovations in punishment practice but has often yielded harsher and more ineffective punishments as a result of the fear and penal populism that has taken hold since the tough-on-crime era.²³⁵ Three strikes laws, ending parole for certain offenses, and even the very development of prisons as an institution, were all policies started and championed by various states until they were more widely adopted.²³⁶ And while states have been experimenting with many decarceration policies,²³⁷ the norm still rests on the harsh side of the scale.

Given the placebo nature of mass incarceration policies, they are difficult to justify unless the punishment system is becoming more efficacious, like the ethics in the medical field. States will continue to experiment with various progressive and harsh punishment policies, and they do so in part to align these policies with the preferences of their constituency.²³⁸ Thus, if Jurisdiction A continues with the status quo of mass incarceration policies and Jurisdiction B decides to experiment with bail reform, lower sentences, or drug courts, there would be a value to criminology and punishment theory if the delta between these similarly situated jurisdictions could be measured. Jurisdiction B might prove that these new policies are ineffective, or they might create support for a new paradigm in punishment, as has been the case throughout federalism’s state experimentation in criminal law.

For the reform-minded utilitarian, mass incarceration is a necessary part of the experiment to prove to politicians and bureaucrats around the country that progressive punishment reform is more efficacious than the current placebo. The delta between the placebo of mass incarceration policies and the growing number of programs that have been shown to reduce first-time offenses and recidivism²³⁹ is a powerful policy tool that justifies change. This is true even though it comes at the cost measured in years of human lives. But while such reformers use metrics to prove their efficacy points, mass incarceration as a placebo is allowed to remain across the country, and the disease of crime is allowed to fester.

For the abolitionist-minded deontologist, there are two groups of people to consider. The first is the communities in Jurisdiction A who are not benefiting from the placebo of mass incarceration policies, although they may indeed enjoy psychological or therapeutic benefit.²⁴⁰ The second group is the millions of people who are suffering because of the harm and social costs of mass incarceration. These people did not consent to be a part of this grand thought experiment but have been caught in the middle of this ethical dilemma and human rights crisis.²⁴¹

The moral supremacy of the deontological and abolitionist arguments cannot be denied, but the uncomfortable truth is that utilitarians hold the pragmatic high ground.²⁴² Experimentation is at the heart of placebo and punishment policy alike. It is a double-edged sword that can bring about tremendous positive change, but it can also be captured by political incentives and penal populism. Consequently, the only utilitarian justification for continuing to use mass incarceration as a placebo would be to wean ourselves off from relying on placebos and begin rigorous analysis that will lead to improved public safety.

The ethics of using placebos in experimentation provides a unique starting point to discuss potential ways to mitigate the harm and justify the practices of placebos in the punishment context. Just as the government plays a key regulatory role in the administration of new drugs, this process might have some value in approving the next generation of punishment policies. Drugs often undergo a rigorous regulatory process that can last years before they are approved for doctors to prescribe, and placebo human trials are merely a step along that long journey.²⁴³

What this experimentation ethic requires is an FDA-like project that gives experts the space, the time, and the resources to approve, reject, or reform new and existing punishment policies. This FDA model would hand over full regulatory power to expert agencies and commissions. The legislature would no longer be in control because they simply do not have the expertise required and the stakes are too high to trust generalists.²⁴⁴ Just as Congress does not have much say in whether Drug A is both efficacious and safe for the market, legislatures would not have much say in whether getting rid of mandatory minimums, for example, would be efficacious and safe for the public.

As Barkow has suggested, there is already an infrastructure of expertise that can be readily tapped for such a transition. Sentencing commissions exist across the country that serve advisory roles to federal and state legislatures; although quite different from the FDA, they are comprised of expert scholars, advocates, and judges.²⁴⁵ While existing commissions have succeeded in recommending reforms and pushing back against penal populist policies, most have little teeth and their policy recommendations can often be ignored if they do not line up with the political incentives ruling their respective legislatures.²⁴⁶ Consequently, there would only need to be a formal legislative delegation and other adjustments to ensure these existing commissions have the necessary power to assume regulatory control over punishment policies.

One of the flaws of this FDA punishment model, however, is that the marketplace of regulating food and drugs is vastly different from regulating criminal acts in material ways. Whereas the FDA is a government agency that regulates private companies, a government agency that regulates other government actors usually takes the form of checks and balances. Since any proposed expert agency of punishment policies would be the progenitor of new policies, there would need to be sufficient checks against these new policies. Thus, if the expert agency adopts a new punishment regulation, the courts would still have the ability to strike it down as a check against the administrative state. Executives would still have the discretion to fire appointees, and the legislature would still be able to impeach such appointees.

This author has also contemplated that such punishment agencies could work in the federalism context, whereby the federal government agency serves as a watchdog over state punishment practices.²⁴⁷ Since 94% of criminal convictions²⁴⁸ and around 83% of incarcerated persons are handled by the states,²⁴⁹ most of the harm of placebo punishment policies are being felt at the state level. This federalism approach would borrow less from the FDA and more from the DOJ’s Civil Rights Division and the preclearance process of the Voting Rights Act.²⁵⁰ The preclearance process gave the federal government power to approve or reject new voting laws before they went into effect in certain states and counties to mitigate voting discrimination. The DOJ could indeed perform similar watchdog functions over various state punishment policies, and it might also have the benefit of creating some uniform accountability for both carceral and non-carceral punishments.²⁵¹ Admittedly, this structure would lack the power of the Voting Rights Act to prevent policies from going into effect. However, the DOJ and the federal government could more easily tie federal funding to this punishment approval process. For instance, if Louisiana wanted to increase penalties for drug offenses, they would maintain their sovereignty to do so. However, if the DOJ disapproved of this policy, it would be well within its purview to rescind federal funding for criminal legal projects,²⁵² and it could partner with other federal agencies to discuss their funding options as well.²⁵³

Handing over so much power to agencies filled with experts is not without its own concerns. Many scholars have expressed reservations about shifting power to experts in ways that might not be productive. Megan Stevenson’s study of more than two dozen meta-analyses led her to conclude that there is very little evidence from randomized control trials that many of the rehabilitation reformist interventions are effective at reducing recidivism or first-time offenses.²⁵⁴ The reliance on “evidence-based reform” might also give people a false sense of efficacy, reliability, and neutrality when discretion is still being used to draw lines, make judgment calls, and enshrine perverse incentives.²⁵⁵ Even experts can be influenced by their own moral and social views on punishment, and these views will often impact which experts are selected by the government to serve on these commissions. Therefore, there is potential for political capture of such agencies, as we see in the administrative state quite commonly.²⁵⁶ Agencies and commissions can be vulnerable to corporate capture, especially if lobbyists or other interests seek to influence commission members by employing them as consultants outside of their government duties. These are important considerations that require careful institutional design choices to mitigate such influences.

The takeaway of this Section is that a placebo punishment methodology enlightens the discussion of ethical experimentation and requires careful consideration of the utilitarian benefits and social costs. Using the mass incarceration placebo is unfortunately a necessary evil to pave a way forward, as justified by creating better consequentialist punishment outcomes. And further, allowing experts into the experimentation process is key to mitigate the past generation of perverse political incentives and penal populism. Allowing experts to conduct these experiments and approve the experiments of others would begin to yield the type of results to turn back the tide of mass incarceration. And while the data, studies, and policies of these experts may not alone be enough to change the social and cultural sentiments towards punishment,²⁵⁷ they can get much closer to punishment policies that effectively make us safer.

D. Placebo Economics

The placebo ethics of economic incentives holds further insight for the marketplace of placebo punishment policies. Ethicists criticize the use of placebos on economic grounds because it requires a patient to pay for a product that is physiologically inert. Placebos are tantamount to snake oil, even if sold or prescribed benevolently by the doctor acting as a salesman. The same ethical criticism should be made of placebo punishment policies and the larger economic debates that have the potential of influencing the very social and cultural meanings necessary to change public views on punishment.

The economic aspect of placebos may be important to shaping the patient’s subjective expectations and perceptions of the treatment. When a doctor prescribes a treatment or drug, this usually necessitates some pecuniary commitment of the patient to go the pharmacy and buy the drug or over-the-counter product.²⁵⁸ Imposing this economic cost may be necessary to the placebo’s impact because a patient would perceive an effective drug to require such out-of-pocket expense. This imposes costs on patients and insurance companies for products that carry little physical benefit but nevertheless provide some psychological and therapeutic benefit. Thus, patients and insurance companies are required to pay for products that are designed to deceive the patient into feeling better, as opposed to a physiologically efficacious treatment.²⁵⁹

In addition to the doctor-patient relationship, there is also a robust, direct-to-consumer placebo market of supplements, vitamins, and other remedies that claim to contribute to health benefits without any scientific proof.²⁶⁰ In fact, many of these so-called health supplements have been scientifically debunked, and yet consumers still flock to this marketplace—which sells substances that are not regulated by the FDA—to the tune of $40 billion every year.²⁶¹ Thus, these alternative treatments that have no scientific backing still make up a “significant segment of the healthcare industry.”²⁶²

Economic incentives also complicate the ethics of the medical industry. Doctors can be incentivized by personal economic gain, receiving stipends, cash bonuses, expensive trips and a whole host of other extra benefits based on their prescriptions. The underworld of pharmaceutical companies paying doctors to increase prescriptions has been uncovered to great public outcry.²⁶³ Even the government could not turn a blind eye to these perverse medical incentives and has been active in investigating and increasing regulations to mitigate these harms.²⁶⁴ This is relevant to the current discussion because, according to some experts, these personal incentives exist for doctors to prescribe drugs they know to be placebos.²⁶⁵

Applying these economic ethical concerns to the placebo punishment sphere, taxpayers should not be expected to pay the expensive costs for a punishment regime that is both inefficient and not efficacious. The prison system itself costs taxpayers approximately $80 billion annually according to conservative estimates and as much as $182 billion annually according to more liberal estimates.²⁶⁶ During the height of the mass incarceration era, state and local expenditures for the incarceration system rose by 946%, outpacing the very social programs better equipped to handle rising crime rates such as education, healthcare, and public welfare.²⁶⁷ And this is just a fraction of the $305 billion that conservatively estimates the total cost of the criminal legal system.²⁶⁸ This is quite the sum for government services that do not effectively deliver public safety benefits.

Politicians are also incentivized to support the punishment marketplace through the PIC. The broader PIC supports a multi-billion-dollar industry that includes a host of private and non-profit companies outside of the prisons’ walls.²⁶⁹ Private prisons alone are estimated to bring in $4 billion in profit,²⁷⁰ and incarcerated people who are forced to work at slave wages produce $11 billion in goods and services.²⁷¹ This is a small sample of the larger PIC, which supports the carceral industry by providing soap, clothes, food, surveillance, weapons, construction, and other goods and services that uphold the status quo. Although not nearly as scandalous as private companies making direct payments to doctors, lobby organizations and unions for the PIC contribute to political campaigns in ways that incentivize politicians, benefit private companies, and incentivize locking up and surveilling more and more people.²⁷²

Placebo ethics questions the economic practice of requiring people to pay for a product that is known to be ineffective and scrutinizes the perverse economic incentives at play. But looking forward, a focus on inefficient or ineffective economic practices can also play a role in changing the very social behavior and cultural understandings necessary for a new punishment paradigm.

The last generational shift in punishment was based on this very placebo ethic, but in slightly different terms. The dominant rehabilitative model was believed by scholars and politicians of the time to be far too ineffective for the relative economic costs. This logic took hold in the 1960s and 1970s, when the federal government spent billions of dollars to improve existing prisons and jails to lower recidivism,²⁷³ all just to see the crime rate rise.²⁷⁴ Politicians and taxpayers alike lost their logical patience to see the long-term positive impacts that rehabilitative models were having²⁷⁵ and instead turned to fear and emotion by favoring harsher sentencing. This paved the way for the implementation of mass incarceration policies during Reagan’s 1980s²⁷⁶ and Clinton’s 1990s.²⁷⁷ It took nearly twenty years of frustrations (1960s and 70s) to boil into a generational shift in policies over the next twenty years (1980s and 1990s).

We have started to see this same multi-decade cycle reflected in the current twenty year frustration period in the 2000s and 2010s. Fiscal conservatives and libertarians—who might have traditionally been the staunchest supporters of law-and-order politics—have started to ring the alarm bells that mass incarceration policies are simply too expensive for the relatively small social benefits.²⁷⁸ Perhaps the surest bet in decarceration over the past fifteen years is that economic downturn has yielded the most significant reforms. The smart-on-crime movement, which boasted more efficient and effective punishment policies, started in the early 2010s as it was spurred by state budgetary cost concerns coming out of the Great Recession of 2008.²⁷⁹ The country’s recent battle with COVID-19 also sparked increased debate about penal spending when states struggled to balance their budgets given the tremendous negative economic impacts of the pandemic.²⁸⁰

Economics were not the entire story, but they were part of the social and cultural shift of these times. Social and cultural expectations shape a patient’s positive and negative experience with a placebo and so too are we seeing the social and cultural expectations of economics impact how Americans are starting to negatively view the placebo of mass incarceration. There are few things more “American” from a cultural standpoint than demanding to get your money’s worth. And as perceptions of the costs of mass incarceration change,²⁸¹ so too will economics impact our cultural rejection of placebo punishment policies.

The placebo punishment framework and the broader health literature it incorporates not only help us think about these ethical economic problems but also gesture towards unique health-related solutions that can inform punishment reform. One approach would be to regulate the market with economic tools like a “sin tax” of some type. This author and others have previously proposed various methods for increasing the economic costs of incarceration on government actors to disincentivize them from over relying on carceral punishment tools,²⁸² such as imposing a tax on local prosecutors when charging and prosecuting a person and suggesting prison time.²⁸³ These types of sin taxes have been applied across the public health sphere from cigarettes to sugary drinks.²⁸⁴ Passing along these costs onto constituents, such as raising taxes for the express purpose of maintaining the prison population, would also likely change the social and cultural expectations of the mass incarceration placebo and could result in further public outcry for reform.²⁸⁵

Another economic insight from the placebo punishment framework is its focus on effective treatments and diagnoses alike. The crime-as-disease framing diagnoses crime as our social and cultural norms have defined it: as the thing to be focused upon for economic investment in the punishment remedy. However, drug addiction, gun violence, mental health and educational problems, and disparities in economic opportunity are the more accurate diagnoses. It is understandable that if a doctor diagnoses cancer, the medical priority is to immediately address that life-threatening problem; but the secondary treatment should be to do everything possible to prevent the cancer from coming back as part of a preventative medical treatment regimen. While this does not condone the use of placebo punishment policies in the past, we must now focus on economically investing in the right treatments for the right diagnoses. This calls for a multivariate investment in punishment policy into education, health policy, job training, and the “all of the above” approach that reformists have advocated for since the beginning of the mass incarceration era.²⁸⁶ Further, the broader we understand this preventative medicine approach so as to avoid future need for placebos, the more we can rely on a multi-agency funding campaign involving the likes of HHS, HUD, DOE, and a host of other governmental grant and funding partners that can tackle the crime problem.²⁸⁷

These economic interventions are not without critics, but dismantling the placebo punishment policies of mass incarceration is designed to take into account more than just dollars and cents. For instance, Marie Gottschalk has levied a series of criticisms against exclusively focusing on economic cost-benefit analysis to solve the mass incarceration crisis in part because it fails to capture the human rights deprivations of incarceration and only serves to reinforce the neoliberal zeal to further cut costs of the welfare state.²⁸⁸ Just like in the 1970s and 1980s, economics will not be the only factor that leads to a generational shift in punishment policy.²⁸⁹ Neither do these tools of economic accountability and reinvestment seek to hollow out the welfare state; rather, they propose the opposite. By focusing on the right diagnoses, we transform the social and cultural tradition from viewing human offenders as a cancer to viewing the institutional failures of the social welfare state as the disease to be remedied with robust reinvestment.

This Section’s focus on highlighting the ethical concerns of placebo economics adds another analytical tool to the placebo methodology of punishment. It is hard to justify mass incarcerations’ placebo focus on controlling public perception of crime based on the actual price tag for such ineffective policies. But this Section also highlights that economics play an important role in shaping public perception and expectation of punishment policies. The more something costs, the more we expect as a society and the more we resent the waste when the policies do not work. Economics can indeed shape the social and cultural perceptions of our punishment future by imposing interventions that increase costs or that refocus policy on the underlying causes of the crime/disease we seek to prevent.

IV. Beyond Punishment and Placebos

The comparisons, synergies, and differences between the medical use of placebos and legal punishment policies offer numerous insights into how we might think about and approach the biggest problems of mass incarceration, but these placebo analyses also offer several insights across criminal legal policy and society as a whole. This Part zooms out to briefly consider these broader questions and applications. Section IV.A illustrates that a placebo methodology can be valuable in legal analysis whenever there is need to compare the effectiveness of a policy with its value on changing the public’s perception of the problem it was purported to address. Section IV.B considers a few alternatives to the placebo methodology that utilize some of the same truths about punishment but according to different, but tangential, socio-medical frameworks.

A. Beyond Punishment

The placebo methodology need not be limited to punishment. Learning from medical ethics and public health literatures, placebo analyses offer an underutilized methodology that impacts theoretical framing and practical problem solving. This Section briefly considers this bigger picture by developing the placebo methodology around a few case studies to spark further scholarly inquiry.

First, it is interesting to consider how much the future use of placebos in the legal literature would contribute to other well-established methodologies. For example, political economists have developed an entire field studying the symbolic value of law and policy.²⁹⁰ Analyzing the law as a symbol implicates some of the same themes as the placebo methodology because they both consider how law impacts both perceptions of society and perceptions of the lawmakers enacting such symbols. Thus, scholars have studied the theoretical symbolisms of tax policy, the environment, health law, and numerous other fields.²⁹¹ One of the key differences is that this symbolic methodology generally focuses on how lawmakers avoid political accountability through passing symbolic laws; in other words, they can gain the benefit of public perception by appearing to do something meaningful through symbolic legislation, and need not be answerable for the law’s actual effects.²⁹² The focus on political accountability and shirking can certainly add to the placebo methodology, but the methodology focuses more on the effectiveness versus perception value proposition along with the ethical considerations of policy justifications.

Behavioral economics walks a parallel path by studying how social contexts and heuristics impact decision-making.²⁹³ This discipline adds tremendous explanatory value to a host of legal and policy decisions by studying the extent to which social norms can contribute to irrational decisions.²⁹⁴ Feel-enomics—or how people feel about the economy—is often more important than the actual economy.²⁹⁵ For example, negotiators will seek to punish their adversary when they perceive unfair treatment, which can actually lead to a negative result for both parties.²⁹⁶ Thus, a person’s perception of what is socially right and wrong behavior can impact their decision-making, which can lead to net-negative results for all.²⁹⁷ Heuristics have also been an important contribution of behavioral economics, which study the mental shortcuts we use when making snap decisions about people, the natural world, and social conventions that can lead to erroneous assumptions.²⁹⁸ This spans the gamut of making snap judgements about a person’s profession, their guilt in committing some offense, or other attributes based on stereotypes that function as judgmental heuristics.²⁹⁹ Heuristics are often informed by learning social cues and stereotypes about different classes of people, and this social context impacts a person’s perception of others at the danger of making a bad and inaccurate judgment call.³⁰⁰

The similarities between behavioral economics and the placebo methodology of criminal punishment should not go unnoticed. Behavioral economics focuses on social contexts and operationalizes the importance of a decisionmaker’s social perception. The placebo methodology benefits from this literature, but it prioritizes public perception as opposed to that of the decisionmaker. Heuristic judgements are often a theme in criminal legal scholarship addressing racial profiling and sentencing disparities, and this relates to how the crime-as-disease framing characterizes certain people and communities as being part of the crime problem.

Within this broader context of using these themes about perception and accountability in legal scholarship, placebos have found some limited value. Aviram has already used slightly different placebo methods to analyze travel regulations.³⁰¹ Malani has also convincingly applied placebo methods to analyze pharmaceutical regulations, health law, consumer protection, and torts.³⁰² Others have invoked the language and terminology of placebos but often as a hollow comparison meant to denote an ineffective legal policy in fields such as financial regulation,³⁰³ labor and employment,³⁰⁴ and environmental policy.³⁰⁵

Narrowing this to the criminal legal context, there are myriad values of the placebo methodology outside of studying mass incarceration. This could extend to other punishment policies such as whether placebo policies might factor into the state of e-carceration and bail reform. In the same way that mass incarceration policies have been used to control public fear and perception, it might be possible that similar goals are imbedded in the pre-conviction bail context and even the post-conviction surveillance context.³⁰⁶ Courts are willing and ready to add to this literature, often looking for unique ways to characterize problems as placebos in the punishment regime.³⁰⁷

Policing is also a ripe field that might benefit from placebo methodologies. Deterrence advocates are often at odds with critical race theorists and abolitionists in this debate, disagreeing about the effectiveness of police presence on catching offenders and deterring future crime. While there are convincing criminological studies suggesting that more police officers can deter crime if it increases an offender’s likelihood of getting caught,³⁰⁸ many Critical Race Theory (“CRT”) scholars argue that policing comes at too heavy a cost for poor and minority communities subjected to surveillance, excessive use of force, and police killings.³⁰⁹ A placebo analysis of policing has some precedent, since the American Public Health Association adopted a policy recognizing policing as a public health issue.³¹⁰ This recharacterization paves a smoother path for a placebo analysis that may focus on how policing impacts perceptions of public safety versus its actual efficacy on public safety; this would, of course, include the nuances of racial politics such as considerations of who the police are meant to keep safe, who benefits from feeling more safe, and who suffers the social costs and consequences of police presence.

This Section is not meant to be exhaustive, but it illustrates the broader appeal and applicability of deeper examinations and use of placebo methodologies in legal scholarship. The ongoing discussions that pit the objective effectiveness of policies against how the police impact public perception of the problem will continue to shape future decision-making. By adding socio-medical ethics and policy solutions to these discussions, multiple literatures can benefit from the placebo methodology as deeper considerations of the law’s value and continued role in society.

B. Beyond Placebos

As this Article has highlighted, comparing punishment policies to a medical placebo treatment is a worthwhile methodology but one that is not a perfect analogy. This Section considers a number of alternative socio-medical framings that also have value for future consideration. Each of these alternative framings expand on different aspects of our social understanding of punishment in ways that highlight latent truths that might impact how we should think about future policy.

Perhaps the most analogous framing is thinking about punishment as a penicillin treatment. The core value of this alternative is that it highlights the changing efficacy of punishment policies across time. Penicillin is an antibacterial treatment that has significant diminishing returns. As penicillin continues to be administered to a patient and a broader population, bacteria will begin forming new strains that are resistant to this treatment.³¹¹ These diminishing returns are shared among many antibacterial treatments, which is why many doctors do not prescribe the treatment long enough for any leftover bacteria to develop immunity. These so-called “superbugs” are incredibly dangerous because they can withstand antibacterial treatments, leaving very few options to treat them otherwise.³¹²

As discussed in Section II.B, there are indeed diminishing returns in the mass incarceration context. Many scholars believe that harsh incarceration policies may have been necessary in a time when violent crime was high but would now argue that these same policies are ineffective and potentially damaging to society in the modern age.³¹³ Perhaps, like penicillin, crime and those who commit it have adapted. People who are sent to prison have an incredibly high recidivism rate in part because prison has been known to increase offenders’ access to criminal networks.³¹⁴ Therefore, the very people we are trying to quarantine from society in such a medical model of punishment are the very people the criminal justice system is responsible for turning into so-called “super predators” as many in the 1990s believed.³¹⁵

If this penicillin model has any practical value, the most important thing we can learn is that we must transition away from the penicillin of prisons. Perhaps prisons served their role in the 1980s and 1990s when violent crime was high. But like penicillin, this “treatment” is not effective over long periods of time; in fact, it is actually dangerous if used long-term. Instead, using prisons effectively to mitigate the growth of crime is important, and now we are in an era of transitioning to second-order treatments meant to ensure the infection or social disease of crime can be managed long-term.

Another alternative framing in the same vein is to consider punishment as an addictive drug. This controversial concept results in quite a different set of considerations in which there is very little benefit and almost entirely unjustifiable costs. For many abolitionists and progressive reformers, mass incarceration might fit within this description. It is a social institution to which society seems to be addicted. Every time we attempt to make reforms, the same system reemerges, and we go back to our carceral fix. Worst yet, just like a drug, many in our society realize how bad mass incarceration is.³¹⁶ Yet we cannot help ourselves. We are addicted to the retributive ideas, the incapacitation logic, and the dopamine feelings of safety. If we honor the alliterative patterns of this Article, we might portray this framing of punishment as a type of poison. The cost of continuing to ingest such a substance is a slow assured death given the harm it is causing the body politic.

This framing is a bit more radical, but it may nevertheless have some kernel of truth to it. How then does this make us think about punishment and mass incarceration? Like an illicit substance, we must break our addiction from these policies. But not even an abolitionist would support such a cold-turkey approach in abolishing prisons. Prison abolition is a generational project that will take years and even decades to accomplish,³¹⁷ which is comparable to a long-term weaning off from the substance. Perhaps we can make annual benchmarks and create a five-, ten-, and twenty-year plan to gradually lower the incarceration rate in ways that will not result in millions of offenders being released back into society all at once.

But even the most stalwart survivor who has dedicated themselves to sobriety knows that relapse is only one moment of weakness away. Whenever crime ticks up, even infinitesimally, we see people rallying for a return to tough-on-crime principles.³¹⁸ It only takes the slightest trigger of crime—whether it be a summer crime wave or even just one particularly egregious crime that gets news coverage—to make society crave retributivism, incapacitation, and the feeling of safety and justice that comes with locking people up and throwing away the key.

Another fascinating socio-medical framework to consider is malingering by proxy, which describes a psychological condition in which a person tells others that their own child or loved one is sick in order to garner sympathy, attention, and financial gain.³¹⁹ This is most prevalent among parents, who will tell others in the community that their child is sick.³²⁰ The parent will make their otherwise healthy child appear sick by mimicking symptoms, such as shaving the child’s head to mimic hair loss suffered by chemotherapy, or by forcing the child to wear bandages or a face mask to mimic injuries or an immune-compromised disorder.³²¹ By mistreating their child in this way, parents often hope to garner sympathy from the community, to be seen as a hero in their own right for taking care of their sick child, and even to ask for donations to help them pay for fake medical treatments.

Malingering is an interesting framing when conceptualizing the role of politicians, law enforcement, prosecutors, and others who are delivering mass incarceration services to the public. Under the placebo framework, these actors were likened to doctors prescribing treatment; but unlike doctors, these actors were deceiving the public for political gain. Under a malingering framing, these actors would similarly be deceiving the public for their own gain by trying to convince the public of the fake malady of criminal behavior in a way that garners public support for their cause. Like the placebo methodology, this framing is rough around the edges and requires the reader not to lose the forest for the trees. Instead of looking for exact 1:1 comparisons, the big picture takeaway is that this framing highlights the perverse incentives of politicians and decisionmakers in advocating for and convincing the public about the merits of harsh punishment policies.

The medical literature is still exploring the level and types of treatment for malingerers, having to confront whether this condition should be considered a psychological disorder.³²² Regardless of this medical question, malingering by proxy is an incredibly harmful antisocial behavior that harms both the communities subject to the false information and the proxy, a usually-vulnerable party who must pretend to be sick. The takeaway from such a framing would be to hold our lawmakers, police officers, prosecutors, and all others who are using deceptive means (whether purposely, knowledgeably, recklessly, or negligently)³²³ accountable for their mischaracterizations that have damaged the community and the public trust.

This Section is meant to be creative, thought-provoking, and controversial. In the same way that the placebo methodology challenges the status quo and our assumptions about mass incarceration, the framings of penicillin, illicit drugs, and malingering offer brief vignettes of alternative ways to highlight different aspects of the modern punishment crisis and how to resolve it. This Section illustrates the value of socio-medical tools to break free of stale approaches to crime and punishment, and I hope it sparks new discussion and theories of the criminal legal system to push the boundaries of what is possible toward reformist interventions.

Conclusion

The medical study of placebos offers a unique approach to theorizing criminal punishment. Because crime is often considered a social disease and punishment is seen as its treatment, mass incarceration policies truly deliver a placebo impact. The placebo methodology captures the importance of the social and cultural context required for mass incarceration policies to control the public’s fear and perception of crime, without having commensurate value on impacting public safety.

This approach offers multiple innovations that raise interesting questions about the future of mass incarceration policies. The interdisciplinary insights from medical ethics provide a stark picture of the sheer lack of justifications for using placebo policy in the punishment context. The negative social costs and harm, malevolent use of deception, the pervasive use of experimentation toward harsher punishment, and the perverse economic incentives require us to abandon placebo policies and move toward punishment practices that can actually make us safer by focusing on what causes the crime/cancer problem through preventative medical and social means.

This is the double-edged sword of the placebo methodology. It reveals the latent problems of punishment policies, but it also provides insight into avoiding the same placebos in the coming generation. This Article hopes to contribute to the larger conversation, ensuring that the sword is slicing in the right direction toward a safer, fairer, and more justified punishment future.

98 S. Cal. L. Rev. 513

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Sheldon A. Evans*

*Professor of Law, Washington University School of Law. I thank Erin Blondel, Vincent Chiao, Chad Flanders, Daniel Fryer, Trevor Gardner II, Fareed Nassor Hayat, Ben Levin, Angelo Petrigh, Sandra Mason, Ion Meyn, Mark Pickering, Ji Seon Song, and Kit Wellman for helpful thoughts and comments. In addition, I extend my thanks to the community of scholars that provided valuable comments and feedback at the University of North Carolina School of Law, the John Mercer Langston Writing Workshop, CrimFest!, the Decarceration Works-in-Progress Workshop, and the St. Louis Criminal Law Theory Workshop. I also thank Sydney Everett for her excellent research assistance.

Introduction

I. The Case(s) Against Social Platforms

A. Defining Social Platforms and Their Algorithms

B. Consequentialist Critiques of Social Platforms

C. Deontic Critiques of Social Platforms

D. Making a Better Case Against Social Platforms

II. Islands of Integrity—Real and Digital Examples

A. Building Islands of Integrity in the Real World

B. Digital Islands of Integrity: Two Examples

III. The Governance of Social Platforms: Aspiring to Build Islands of Algorithmic Integrity

A. The Limits of Existing Platform Regulation Regimes

Regulating Ex Ante for Harms

Regulating Ex Ante for Balance

Tort Liability for Harmful Algorithmic Design

B. The Possible Vectors of Algorithmic Integrity

Conclusion

98 S. Cal. L. Rev. 1287

Introduction

I. Substantive Accountability and the Constitution

II. Major Judicial Precedent (and a Glimpse at Executive Branch Precedent)

A. Government Speech Doctrine

B. Unitary Executive Theory

III. Contemporary Threats to Substantive Accountability

A. Unitary Executive Theory and Federal Investigations

B. Broader Attacks on the Civil Service: UE Theory and Government Speech Doctrine at Work

Unitary Executive Theory

Federal Employees and the First Amendment

The First Amendment and State and Local Employees

IV. Some Kernels of Hope

CONCLUSION

98 S. Cal. L. Rev. 1321

I. Fear on Both Sides, Speech on Both Sides

A. Speakers’ Fear of the Government

B. Targets’ Fear for Their Physical Safety

II. Attending to Targets’ Free Speech Interests in Threats and Stalking Cases

A. The First Amendment Argument for Symmetrical Concern for Speakers’ and Targets’ Expressive Interests in Threats Cases

B. The Counterman Court’s Missed Opportunity: Defining Unprotected True Threats Through an Objective Target-Centered Standard

C. Target-Attentive Approaches to Threats Cases After Counterman

D. Target-Attentive Approaches to the Many Stalking Cases That Do Not Involve Threats and Where Counterman Thus Does Not Apply

Stalking That Takes the Form of Conduct Only

Stalking That Takes the Form of Communications That Instill Fear Regardless of Their Content

Stalking That Takes the Form of Threatening Speech

Stalking That Involves Both Conduct and Speech

Conclusion

98 S. Cal. L. Rev. 1351

Introduction

I. Techno-Solutionism

A. What Is Techno-Solutionism?

B. Techno-Solutionism and Venture Capital

C. Techno-Solutionism and the Law

How Law Perpetuates Techno-Solutionism

How Law Can Be Stymied by Techno-Solutionism

II. Fintech and Techno-Solutionism

A. Financial Inclusion

B. Efficiency

C. Competition

D. Security

III. Financial Regulation and Techno-Solutionism

A. Quick Primer on Financial Regulation

B. Financial Regulation and Techno-Solutionism

Legislative Proposals

Administrative Action

i. Rulemaking and Guidance

ii. Monitoring

iii. Enforcement

Looking Forward: Financial Regulation and AI

IV. A Possible Antidote to Techno-Solutionism

Conclusion

98 S. Cal. L. Rev. 761

INTRODUCTION

I. Fair Use: Law and Theory

A. The Fair Use Doctrine

B. Theoretical Justifications of the Fair Use Doctrine

II. Fair Use as Licensing Leverage

A. The Theory

B. The Model

C. Illustrations

Oracle and the Future of Licensing in Technologies

Documentary Filmmakers

Parodies and Satires