Notes Archives – Southern California Law Review

PI + 9: A Modest Proposal to Protect Americans’ Individual Rights

March 2026March 2026Lincoln Son Currie*

INTRODUCTION

Civil liberties deserve better protection than the dubious doctrine of substantive due process. Fortunately, an underappreciated, yet significant, development is ripening within the Supreme Court’s jurisprudence surrounding the incorporation of the Bill of Rights. At least two Supreme Court Justices¹ are willing to consider opening the Privileges or Immunities Clause door to incorporation that the Slaughter-House Cases slammed shut.² What if three more Justices changed their minds and that door swung open?

This Note provides a new methodology called the “PI + 9 Framework.” The PI + 9 Framework combines the Fourteenth Amendment’s Privileges or Immunities Clause (“PI”) with the Ninth Amendment (“9”) to apply the Bill of Rights to the states in a more efficient, clear, and sturdy way. This proposition is a bold, yet modest, means by which to incorporate the Bill of Rights against the states while securing unenumerated rights. The Framework is faithful to the original public meaning and original intent of the Privileges or Immunities Clause. The PI + 9 Framework focuses on the procedures by which substantive rights are secured rather than seeking untested answers that could destabilize manifold areas of law. Instead, the PI + 9 Framework seeks to ground the Bill of Rights, including unenumerated rights, in something more robust than substantive due process. The emphasis on a proper mechanism addresses justified concerns about the Privileges or Immunities Clause and the Ninth Amendment becoming a Pandora’s box.

This Note will begin by examining the only appropriate means for incorporating the Bill of Rights against the states: the Privileges or Immunities Clause. Part I conducts an in-depth textual analysis of the meaning of privileges and immunities in the context of the Privileges or Immunities Clause. Part II analyzes the case law surrounding the Clause, with a particular focus on the Slaughter-House Cases and some pertinent concurrences and dissents by Justice Black and Justice Thomas, respectively. Part III makes the case for overruling Slaughter-House based on the Supreme Court’s recent application of stare decisis factors. This Part goes factor-by-factor to argue why stare decisis should not prevent Slaughter-House from being overruled. Part IV argues for an end to substantive due process due to its poor reasoning and inability to adequately secure rights. Part V discusses how the Court should recognize unenumerated rights and considers which Ninth Amendment methodology would best identify and secure those rights. Part VI applies the PI + 9 Framework to two hypothetical fact patterns—one involving an enumerated right and the other involving an unenumerated right. A helpful chart of the Framework is included in that Part. Part VII lays out the advantages the PI + 9 Framework has over the current substantive due process regime. This Note gives the Supreme Court a guide for replacing substantive due process while preserving incorporation of the Bill of Rights and protecting the unenumerated rights that the Court is anxious about safeguarding.

I. TEXTUAL ANALYSIS OF THE PRIVILEGES OR IMMUNITIES CLAUSE

Before analyzing the Privileges or Immunities Clause’s case law, the meaning of privileges and immunities—and the meaning of those words when used alongside one another—is worth examining.

A. Interpreting Privileges and Immunities in Historical Context

The meaning of privileges and immunities is best explored by looking at the words’ meanings at the time of the Fourteenth Amendment’s ratification—while also keeping in mind the historical usage of those words in the Anglo-American legal tradition.

A Few Meanings of Privilege

The meaning of privilege at the time of the Fourteenth Amendment’s ratification, 1868,³ offers a guide that may be considered independently or alongside the Framers’ intent when interpreting the Privileges or Immunities Clause. A leading dictionary from around the time of ratification provided three definitions of privilege: (1) “[a] particular and peculiar benefit or advantage enjoyed by a person, company, or society, beyond the common advantages of other citizens”; (2) “[a]ny peculiar benefit or advantage, not common to others of the human race”; (3) “[a]dvantage; favor; benefit.”⁴ The first and second definitions are plausible, but the third is too vague to offer meaningful guidance toward understanding the Privileges or Immunities Clause in context. The first two definitions are more precise. Additionally, the third definition does not contradict the preceding definitions; thus, its interpretive value diminishes. Therefore, two definitions of privilege remain.

Privilege As a Benefit Beyond Those Held by Common Citizens

The first definition of privilege does not suit the Privileges or Immunities Clause and is better understood in the mode that privilege is used in the Speech and Debate Clause found in Article I, Section 4 of the Constitution.⁵ The Speech and Debate Clause guarantees that “Senators and Representatives” shall “be privileged from Arrest” during legislative sessions and when coming from and going to those sessions—except in cases of “Treason, Felony and Breach of the Peace.”⁶ This fits the first definition of privilege because the privilege granted to Senators and Representatives is not granted to common American citizens, who enjoy no such privilege.

Anglo-American jurists such as William Blackstone, Matthew Hale, and James Kent all occasionally used privilege to mean a benefit beyond those held by common citizens. For example, Blackstone described the “privilege of letters”⁷ that allowed members of parliament to send and receive letters free of postage.⁸ Hale wrote about bishops and abbots who “had special privileges granted to them to have mints.”⁹ Kent mentioned the privileges consuls are entitled to, “such as for safe conduct.”¹⁰ However, interpreting privilege in that manner in the context of the Privileges or Immunities Clause creates an incongruity. Under this inappropriate definition of privilege, the Privileges or Immunities Clause would guarantee that states could not abridge the benefits that citizens of the United States enjoyed beyond the benefits enjoyed by citizens of the United States. Inserting the first definition of privilege creates a contradiction. This preposterous result proves that privilege in the Privileges or Immunities Clause should not be interpreted as an advantage enjoyed beyond those enjoyed by common citizens.

Privilege As a Peculiar Benefit or Advantage Not Common to Others of the Human Race

To determine whether a “peculiar benefit or advantage not common to others of the human race”¹¹ is within the Clause’s scope, the Court would need to consider which benefits or advantages of citizens of the United States fall within the Clause’s scope. Americans enjoy manifold privileges as citizens of a prosperous nation. However, regarding the Privileges or Immunities Clause, the legal privileges are the most suitable for judges to ascertain.

The writings of prominent Anglo-American jurists suggest that the second definition of privilege, as a peculiar benefit or advantage, encompasses rights. Anglo-American jurists sometimes used privilege interchangeably with rights. For example, Blackstone described “those civil privileges”¹² as part of what constitutes a right found in “the declaration of our rights and liberties.”¹³ Kent mentioned the “right of trial by jury”¹⁴ in suits at common law, which the Seventh Amendment secures.¹⁵ Elsewhere, Kent referred to the jury trial right as a privilege. For example, Kent described some of “the inherent rights and liberties of English subjects, of which the most essential were the exclusive power to tax themselves, and the privilege of trial by jury.”¹⁶

Founding-era historical evidence offers additional proof that privilege’s second definition is the most appropriate one. At the time of the American Revolution, “[t]he words rights, liberties, privileges, and immunities, seem to have been used interchangeably.”¹⁷ Indeed, as evidenced by Blackstone’s invocation of privilege and historical examples that predate or coincide with the American Revolution, the interchangeability of privilege and right is well-founded.¹⁸

Viewing privilege as interchangeable with right, advantage, benefit, or immunity results in an interpretation aligned with privilege’s original public meaning at the time of the Fourteenth Amendment’s ratification. Under that definition, the Privileges or Immunities Clause would be understood to protect “the [rights, benefits, advantages] or [I]mmunities of citizens of the United States” from state abridgment.¹⁹

A Few Meanings of Immunity

Around the time of the Fourteenth Amendment’s ratification, a leading American dictionary listed three definitions for immunity: (1) “[f]reedom or exemption from obligation”; (2) “[e]xemption from any charge, duty, office, tax, or imposition; a particular privilege or prerogative”; and (3) “[f]reedom.”²⁰ Like the three definitions of privilege, the first two are plausible on their faces, but the third is too vague. Moreover, like the third definition of privilege,²¹ the third definition of immunity does not contradict the first or second definition. Thus, two definitions are ripe for examination.

The Broader Immunity Definition Is the Best Match

The first definition of immunity is an incomplete match for how immunities is used in the Privileges or Immunities Clause.²² The second and more capacious definition of immunities—“[e]xemption from any charge, duty, office, tax, or imposition; a particular privilege or prerogative”²³—fits more naturally with other constitutional protections that existed at the time of the Fourteenth Amendment’s ratification. One example precedes the Bill of Rights.

Before the ratification of the Bill of Rights, Americans enjoyed an important immunity that remains in force. Article III, Section 3 of the Constitution grants Congress the power to decide how treason is punished but provides that “no Attainder of Treason shall work Corruption of Blood.”²⁴ The Constitution does not define the prohibition of Corruption of Blood as punishment for treason as a right, immunity, or anything else. The punishment is simply prohibited. Any attempt by Congress to make treason punishable by Corruption of Blood would be voided due to its conflict with the Constitution.²⁵ Thus, Article III, Section 3 of the Constitution could reasonably be interpreted as providing immunity to American citizens from Corruption of Blood as a punishment for treason.

In a similar way, several provisions in the Bill of Rights provide for exemptions against certain charges and impositions. The Fifth Amendment prohibits double jeopardy and thus exempts a person from any charge of which they were already acquitted.²⁶ The Eighth Amendment exempts or immunizes Americans from the imposition of excessive fines.²⁷ Even if the word rights were not synonymous with immunities, some provisions of the Bill of Rights could reasonably be interpreted as immunities.

B. Rights, Privileges, and Immunities

Rights, privileges, and immunities were interchangeable words at the time of the Fourteenth Amendment’s ratification.²⁸ One needs to look no further than a dictionary to see that privilege and immunity were words used to define the word right.²⁹ Justice Thomas recognized this reality in his concurrence in McDonald v. City of Chicago.³⁰ Absent a showing that the Privileges or Immunities Clause means something other than what it says, the plain meaning appears to cover at least those rights enumerated in the Constitution at the time of the Fourteenth Amendment’s ratification, namely those in the Bill of Rights.³¹ The Bill of Rights originally established a baseline of rights that only applied to the federal government.³² Despite the rights being limited to protection against federal government infringement, all citizens of the United States still nonetheless enjoyed those rights, albeit with application being limited to the federal government and not state governments.

The plain meaning of privileges and immunities in the Privileges or Immunities Clause is not ambiguous, but construing the Clause is trickier. Given that rights, privileges, and immunities were synonymous at the time of the Fourteenth Amendment’s ratification, one would need to determine whether the Bill of Rights is within the scope of rights enjoyed by citizens of the United States that no state shall abridge.

C. “Citizens of the United States” Sets an Appropriate Limit on the Constitution’s Abridgment of State Power

Although several interpretations of the Privileges or Immunities Clause are reasonable,³³ the Clause must answer two questions. First, Are citizens of the United States the only persons whose privileges or immunities are protected from state abridgment? Second, Are states prohibited from infringing on those privileges or immunities that citizens of the United States hold? The first question asks who gets protected by the Privileges or Immunities Clause. The second question asks which rights are protected.

Justice Thomas answered the first question satisfactorily in his concurrence in McDonald v. City of Chicago.³⁴ One need not search outside the same section in which one finds the Privileges or Immunities Clause to find another that operates as a more natural and efficacious anti-discrimination provision: the Fourteenth Amendment’s Equal Protection Clause.³⁵ The Supreme Court occasionally used the Equal Protection Clause to strike down discriminatory laws shortly after Slaughter-House was decided.³⁶ Furthermore, suppose a state passed a law that only abridged the rights of noncitizens. Such abridgment may violate the Fourteenth Amendment’s commandment that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”³⁷ The Privileges or Immunities Clause is read more naturally as a clause that establishes a “minimum baseline of federal rights” that states may not abridge.³⁸ Such a reading answers the aforementioned second question in the affirmative.

II. PRIVILEGES OR IMMUNITIES CLAUSE CASE LAW

Any examination of the jurisprudence surrounding the Privileges or Immunities Clause must begin with the Slaughter-House Cases.³⁹ The majority opinion and dissents illuminate Reconstruction Era views of the Clause. Since the Court decided Slaughter-House, the few Justices who have conducted extensive historical analysis of the Clause’s legislative history have arrived at a more expansive view of the Clause.⁴⁰

A. Slaughter-House Shuts One Door for Incorporating the Bill of Rights

In 1873, the Supreme Court in Slaughter-House held that the Privileges or Immunities Clause did not incorporate the Bill of Rights against the states.⁴¹ Since then, the Privileges or Immunities Clause has been relegated to obsolescence.⁴² Once, in Saenz v. Roe, the Court used the Clause to recognize a right to travel⁴³ by striking down a California law⁴⁴ limiting welfare benefits for new California residents.⁴⁵ In his Saenz dissent, Chief Justice Rehnquist lamented the Court’s revival of the Clause, in part because the Clause had been dormant for so long.⁴⁶ Eleven years after Saenz, the Court in McDonald v. City of Chicago reluctantly affirmed, or at least refused to revisit, Slaughter-House’s narrow construction of the Privileges or Immunities Clause.⁴⁷ The reluctant affirmation of a questionable precedent was unwarranted in light of the developments after Slaughter-House. Federalism concerns pervaded the majority opinion’s reasoning in Slaughter-House. The Court worried that the Constitution—and the Court expounding it—would become a “perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment.”⁴⁸

Nevertheless, the Supreme Court has incorporated most of the Bill of Rights against the states. The remaining unincorporated enumerated rights are the seldom-litigated Third Amendment,⁴⁹ the Fifth Amendment’s Grand Jury Clause,⁵⁰ and the Seventh Amendment right to a trial by jury in suits at common law.⁵¹ The resultant beefing up of the Fourteenth Amendment’s Due Process Clause and Equal Protection Clause has achieved an effect rivaling the censor that the Slaughter-House majority feared.⁵²

Although the Privileges or Immunities Clause’s construction in Slaughter-House stands as good law today, the dissenters’ views shed some light on other views of the Privileges or Immunities Clause around the time of the Fourteenth Amendment’s ratification. Four Justices dissented in Slaughter-House.⁵³ Justice Field—joined by Chief Justice Chase, Justice Swayne, and Justice Bradley—dissented and wrote that if the Fourteenth Amendment’s Privileges or Immunities Clause were interpreted as narrowly as the majority interpreted it, then the Privileges or Immunities Clause “was a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage.”⁵⁴ Justice Field foresaw the superfluity of the new Clause if it were read so narrowly and wrote, “With privileges and immunities thus designated or implied no State could ever have interfered by its laws, and no new constitutional provision was required to inhibit such interference.”⁵⁵ Justice Field’s prediction has but one blemish more than 150 years after the Court decided Slaughter-House: Saenz v. Roe.⁵⁶ Although Justice Field’s prediction proved prescient, Justice Bradley and Justice Swayne wrote broader dissents that explicitly advocated incorporating the Bill of Rights against the states via the Privileges or Immunities Clause.

Justice Bradley criticized the majority’s decision by averring that “the Constitution itself” contains “some of the most important privileges and immunities of citizens of the United States.”⁵⁷ One problem with narrowly construing the Privileges or Immunities Clause is that it denigrates the rights set forth in the Bill of Rights as not fundamental or less fundamental. A judge’s place is not to decide which rights in the Bill of Rights are essential and which are not.⁵⁸ Those who ratified the amendments comprising the Bill of Rights thought each was important enough to become part of the nation’s founding document. The people’s will, as expressed through their passage of the amendments, ought to be dispositive on the issue of whether a right in the Bill of Rights is fundamental. Justice Bradley grasped this flaw when he wrote that other rights, privileges, and immunities “of the greatest consequence were enumerated, although they were only secured, in express terms, from invasion by the Federal government.”⁵⁹ The Fourteenth Amendment changed the equation by protecting the privileges or immunities of citizens of the United States from state abridgment.⁶⁰

Justice Swayne wrote a separate dissent and believed that the Reconstruction Amendments “may be said to rise to the dignity of a new Magna Charta.”⁶¹ Justice Swayne also thought the majority’s analysis served to obfuscate rather than clarify.⁶² Justice Swayne believed the Privileges or Immunities Clause was clear and wrote, “Elaboration may obscure, but cannot make clearer, the intent and purpose sought to be carried out.”⁶³ Justice Swayne believed the Privileges or Immunities Clause concerned, “among other things, the fundamental rights of life, liberty, and property, and also the rights which pertain to him by reason of his membership of the Nation.”⁶⁴ This formulation would almost certainly cover each enumerated provision of the Bill of Rights and perhaps some rights not enumerated in the Constitution. After all, even the narrowly construed Privileges or Immunities Clause has already been held to protect at least one unenumerated right: the right to travel.⁶⁵ Justice Swayne acknowledged the objection that “the power conferred is novel and large.”⁶⁶ Justice Swayne had a simple answer to the objection:

The answer is that the novelty was known and the measure deliberately adopted. The power is beneficent in its nature, and cannot be abused. It is such as should exist in every well-ordered system of polity. Where could it be more appropriately lodged than in the hands to which it is confided? It is necessary to enable the government of the nation to secure to every one within its jurisdiction the rights and privileges enumerated, which, according to the plainest considerations of reason and justice and the fundamental principles of the social compact, all are entitled to enjoy. Without such authority any government claiming to be national is glaringly defective.⁶⁷

Justice Swayne ended his dissent by expressing hope that the consequences of the majority’s decision would be “less serious and far-reaching than the minority fear they will be.”⁶⁸ Justice Swayne’s fear was partially realized. On the one hand, most of the Bill of Rights is now incorporated.⁶⁹ On the other hand, incorporation of the Bill of Rights against the states proceeded tardily.⁷⁰ The majority failed to create a precedent that provided a bulwark against the specter of the “perpetual censor”⁷¹ of which the majority expressed great trepidation.⁷² However, the majority succeeded in crafting a precedent that dissuaded most future jurists from pursuing incorporation of the Bill of Rights via the Privileges or Immunities Clause.

B. The Privileges or Immunities Clause’s Post-Slaughter-House Champions

Following Slaughter-House, few Justices have dared to broaden the construction of the Privileges or Immunities Clause. The two most significant proponents of such a construction are Justice Black and Justice Thomas.

Justice Black’s “Eminently Reasonable” Method of Incorporating the Bill of Rights Against the States

In 1947, Justice Black, an early practitioner of constitutional originalism,⁷³ concluded in his dissent in Adamson v. California that the Privileges or Immunities Clause was intended to apply the first eight amendments of the Bill of Rights to the states.⁷⁴ In 1968, Justice Black, in a concurrence joined by Justice Douglas,⁷⁵ doubled down on his Adamson dissent. Justice Black once again concluded that the Privileges or Immunities Clause “seem[ed] to [him] an eminently reasonable way of expressing the idea that henceforth the Bill of Rights shall apply to the states.”⁷⁶

Experience as a prominent legislator guided Justice Black’s view of the Privileges or Immunities Clause.⁷⁷ Justice Black’s historical analysis of the Privileges or Immunities Clause—and the wholesale incorporation view that resulted therefrom—has value because of his decade-long experience as a United States senator.⁷⁸ Although Justice Black’s opinions regarding incorporation lack the force of law, his experience as a legislator may guide current and future Justices in evaluating the Privileges or Immunities Clause’s legislative history. Regarding the value of prior opinions, Justice Gorsuch wrote, “Precedent is a way of accumulating and passing down the learning of past generations, a font of established wisdom richer than what can be found in any single judge or panel of judges.”⁷⁹ The wisdom of former legislators who served as Justices can only be found in the past. No current Supreme Court Justice was ever a legislator. Justice O’Connor was the most recent Justice with any legislative experience,⁸⁰ and Justice Black was the last member of Congress to serve on the Court.⁸¹ Justice Black’s perspective regarding the Privileges or Immunities Clause aids the argument that views the legislative history of the Privileges or Immunities Clause as intending a full incorporation of the Bill of Rights.

Some have lamented when a judge heavily relies on history,⁸² but Justice Black’s opinions offer helpful surveys of the Fourteenth Amendment’s legislative history. The lived experience of a decade as a United States senator adds weight to his opinions regarding the Privileges or Immunities Clause’s legislative history. The fact that no current Justice on the Supreme Court has any experience as a legislator would be a problem if the Court had no previous opinion from a former legislator from which to draw. This is not the case. Justice Black passed down his learning about the Privileges or Immunities Clause’s meaning through his opinions in cases such as Adamson v. California⁸³ and Duncan v. Louisiana.⁸⁴ No judge ought to be required to follow Justice Black’s jurisprudence on every matter that touches legislative history on account of his experience. However, his legislative experience and pioneering originalism lend a unique perspective to any jurist seeking the original meaning of the Privileges or Immunities Clause.

Justice Thomas’s Revival of Privileges or Immunities in McDonald v. City of Chicago

In the past twenty years, Justice Thomas has led the charge for a potent Privileges or Immunities Clause in concurring opinions when a case arises in which the incorporation of a provision of the Bill of Rights is at issue.⁸⁵ Justice Thomas’s interpretation of the Constitution centers around a search for the Constitution’s original meaning.⁸⁶ Justice Thomas employed this interpretive method in his concurring opinion in McDonald v. City of Chicago.⁸⁷ In McDonald, Justice Thomas concluded that the Second Amendment’s right to keep and bear arms applied to the states via the Fourteenth Amendment’s Privileges or Immunities Clause.⁸⁸ After a detailed treatment of the Fourteenth Amendment’s text and history,⁸⁹ Justice Thomas wrote the following about the Privileges or Immunities Clause as it relates to incorporating the Bill of Rights:

This evidence plainly shows that the ratifying public understood the Privileges or Immunities Clause to protect constitutionally enumerated rights, including the right to keep and bear arms. As the Court demonstrates, there can be no doubt that § 1 was understood to enforce the Second Amendment against the States. In my view, this is because the right to keep and bear arms was understood to be a privilege of American citizenship guaranteed by the Privileges or Immunities Clause.⁹⁰

Justice Thomas recognized that the legislative history surrounding the Clause was “less than crystal clear.”⁹¹ He also acknowledged the difficulties that interpreting the once-dormant Clause may pose. Still, he argued that interpretation of the Privileges or Immunities Clause was “far more likely to yield discernible answers[ ]than the substantive due process questions the Court has for years created on its own, with neither textual nor historical support.”⁹²

In McDonald, Justice Thomas was alone in his interpretation of the Privileges or Immunities Clause. The plurality opinion stated that it “saw no need to reconsider” Slaughter-House and “therefore decline[d] to disturb the Slaughter-House holding.”⁹³ The phrasing in that sentence is crucial. The plurality did not reject Justice Thomas’s view on the merits or defend Slaughter-House on the merits. Instead, they saw another path to incorporation—substantive due process. Because that path remained open, the plurality believed it was merely unnecessary—though perhaps not improper—to revisit Slaughter-House.

The dissents rejected Justice Thomas’s view for similar reasons. In his dissent, Justice Stevens acknowledged the “impressive amount of historical evidence”⁹⁴ that the petitioners compiled in support of their position that Slaughter-House’s narrow reading of the Privileges or Immunities Clause was erroneous. Yet, Justice Stevens believed the original meaning of the Clause was “not nearly as clear as it would need to be to dislodge 137 years of precedent.”⁹⁵ In a separate dissent joined by Justice Ginsburg and Justice Sotomayor, Justice Breyer declined to defend Slaughter-House on the merits and instead wrote only that “the plurality today properly declines to revisit our interpretation of the Privileges or Immunities Clause.”⁹⁶ The refusal to substantively engage with Justice Thomas’s opinion or to defend Slaughter-House on the merits is at least some evidence of the weak footing on which opposition to Justice Thomas’s conclusion rests. A maxim from Chief Justice Marshall is enough to support Justice Thomas’s conclusion and defeat Slaughter-House’s construction of the Privileges or Immunities Clause, such that the only justification for upholding Slaughter-House is stare decisis. In Marbury v. Madison, Chief Justice Marshall wrote, “It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such a construction is inadmissible, unless the words require it.”⁹⁷ The words of the Privileges or Immunities Clause do not require such a narrow construction. Slaughter-House ought to be overruled unless stare decisis justifies upholding the precedent.

The Post-McDonald Future of the Privileges or Immunities Clause

Although Justice Thomas was unsuccessful in reviving the Privileges or Immunities Clause in McDonald, he has continued to defend his interpretation of the Clause. In Timbs v. Indiana, Justice Thomas would have applied the Eighth Amendment’s prohibition of excessive fines to the states via the Privileges or Immunities Clause—not the Due Process Clause.⁹⁸ In Dobbs v. Jackson Women’s Health Organization, Justice Thomas argued for reconsidering every substantive due process precedent and deciding whether the rights protected by those precedents are protected by the Privileges or Immunities Clause.⁹⁹ Since McDonald, Justice Thomas has found one potential ally to support his view of the Privileges or Immunities Clause. In 2019, Justice Gorsuch has emerged as a possible proponent of incorporation via the Privileges or Immunities Clause, a position he contemplated in Timbs.¹⁰⁰

III. STARE DECISIS FACTORS POINT TO OVERRULING SLAUGHTER-HOUSE

Stare decisis is not an “inexorable command.”¹⁰¹ However, the rule of law rests on a measure of stability. Justice Brandeis was prudent to say, “Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right.”¹⁰² Nevertheless, the oft-wise policy is weakest when the Supreme Court interprets the Constitution because changing a constitutional precedent can only be accomplished via constitutional amendment—an arduous process—or by overruling the precedent.¹⁰³

The Slaughter-House majority’s interpretation of the Privileges or Immunities Clause is wrong and should be overruled. To overrule it, the Court would need to find that stare decisis factors weigh in favor of overruling the case. The Court tends to rely on six stare decisis factors: (1) nature of the error; (2) quality of the reasoning; (3) workability of the rule established; (4) disruptive effect on other areas of law; (5) developments since the case was decided; and (6) reliance interests.¹⁰⁴ All but one particular factor is either neutral or weighs in favor of overruling Slaughter-House. The factors as a whole weigh strongly in favor of overruling Slaughter-House and interpreting the Fourteenth Amendment’s Privileges or Immunities Clause as fully incorporating the Bill of Rights.

A. The Nature of the Slaughter-House Majority’s Error

The first factor focuses on the degree of wrongness and the damaging effects of the decision rather than the reasoning itself.¹⁰⁵

The Slaughter-House majority’s opinion constituted the type of egregious and deleterious error¹⁰⁶ that makes the first stare decisis factor weigh in favor of overruling Slaughter-House. Suppose that each provision of the Constitution were interpreted as narrowly as the Privileges or Immunities Clause. If each constitutional provision were interpreted so narrowly as to be famous for having little or no effect,¹⁰⁷ what purpose would the Constitution serve? The judicial nullification of the Privileges or Immunities Clause is repugnant to a democratic people and disrespects the ratifiers of the Fourteenth Amendment. The majority’s decision in Slaughter-House was nothing more than the “exercise of raw judicial power,”¹⁰⁸ which in effect nullified part of the Fourteenth Amendment.

Decisions that invent “principles or values that cannot fairly be read into [the Constitution] usurp the people’s authority.”¹⁰⁹ Here, the Slaughter-House majority did the inverse of what the Dobbs majority criticized Roe v. Wade¹¹⁰ and Planned Parenthood of Southeastern Pennsylvania v. Casey¹¹¹ for doing. The Dobbs majority believed that Roe and Casey improvidently took a decision not yet made by the American people and made it for them via judicial pronouncement;¹¹² the Slaughter-House majority took a decision already made by the American people, through the ratification of the Fourteenth Amendment, and revoked it via an impermissibly narrow interpretation¹¹³ of the Privileges or Immunities Clause that sapped the Clause of all might.

B. The Quality of the Slaughter-House Majority’s Reasoning

Silence and evasion cry out for criticism. When nobody stands to defend a precedent’s reasoning, the quality of the reasoning is weaker.¹¹⁴ In 2020, a plurality of the Court in Ramos v. Louisiana found the quality of the reasoning factor to weigh in favor of overruling a precedent, partly because “no Member of the Court today defend[ed] [the precedent] as rightly decided.”¹¹⁵ Justices from across the spectrum have attacked the Slaughter-House majority’s reasoning by refusing to defend the merits of Slaughter-House’s interpretation of the Privileges or Immunities Clause.¹¹⁶ The Justices were right to refuse to defend the opinion on the merits because doing so is almost impossible. The consensus of constitutional scholars is that the Slaughter-House majority’s interpretation of the Privileges or Immunities Clause was wrong.¹¹⁷

The reasoning in Slaughter-House was “exceptionally weak.”¹¹⁸ The reasons for the narrow construction were (1) a bald, results-based conclusion and (2) an absurd reading that ignores text and legislative history.

A Bald, Results-Based Conclusion

Beginning with the bald conclusion, the Court stated, “There can be little question that the purpose of both [Article IV’s Privileges and Immunities Clause and the Fourteenth Amendment’s Privileges or Immunities Clause] is the same, and that the privileges and immunities intended are the same in each.”¹¹⁹ In clear language, the Court admitted its result-oriented construction was “not always the most conclusive” argument.¹²⁰ Nevertheless, the Court made its choice out of fear of a theory that “radically change[d]” the relationship between state and federal governments and about concerns that the Court would become a “perpetual censor” over state legislatures.¹²¹ The Court’s reasoning depended on avoiding a purportedly undesirable outcome, but that feared result has already been achieved.¹²² The reasoning undergirding Slaughter-House’s results-based conclusion has crumbled as substantive due process has grown.¹²³

To overcome its concerns about a radical change to the constitutional order, the Court asked for “language which expresse[d] such a purpose too clearly to admit of doubt.”¹²⁴ The Court adopted something akin to a beyond-reasonable-doubt standard for interpretation that had no basis in constitutional interpretation. The total concoction of a novel standard for constitutional interpretation is further evidence of an egregiously wrong opinion.

An Absurd Reading That Ignores Text and Legislative History

In the majority opinion, Justice Miller set forth an anti-textual reading of the Fourteenth Amendment that distinguished between the privileges or immunities of citizens of a state and the privileges or immunities of citizens of the United States.¹²⁵ According to Justice Miller, the privileges and immunities of the citizen of a state “embrace[] nearly every civil right for the establishment and protection of which organized government is instituted.”¹²⁶ Conversely, the privileges and immunities of the citizen of the United States were limited to things like the right to travel to and from the seat of government and access to seaports.¹²⁷ The dichotomy between state citizens’ rights and United States citizens’ rights is difficult to square with Justice Miller’s belief that the purpose and effect of the Fourteenth Amendment should be to protect Black Americans.¹²⁸ The plain language of the Privileges or Immunities Clause seems to desire some nationwide baseline for individual rights. If that baseline was as paltry as Justice Miller suggested, then the enactment truly was “vain and idle.”¹²⁹

Regarding legislative intent, Justice Miller did not believe that a broad Privileges or Immunities Clause was intended. Justice Miller summarily concluded that he was “convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.”¹³⁰ Justice Miller failed to conduct even a cursory survey of the legislative history. If he had done so, he would have found that leading Republicans in the Congress that passed the Fourteenth Amendment believed the capacious definition of privileges and immunities was appropriate for the federal government to prevent state infringement of the same.¹³¹ Adding to the case against Justice Miller’s reading of the legislative history is the fact that Representative John Bingham, the Privileges or Immunities Clause’s primary draftsman, stated in a speech in Congress that the purpose of the Clause was to apply the Bill of Rights to the states.¹³² The quality of the Slaughter-House majority’s reasoning was abysmal because it failed to heed the Privileges or Immunities Clause’s plain text or legislative history.

For the above reasons and many more, “[v]irtually no serious modern scholar—left, right, and center—thinks that [the majority’s reading] is a plausible reading of the Amendment.”¹³³ The quality of the majority’s reasoning surpasses an excusable “garden-variety error”¹³⁴ and makes the quality of the reasoning factor weigh strongly in favor of overruling the precedent.

C. The Workability of the Rules Imposed on the Country

The workability factor asks whether the rule “can be understood and applied in a consistent and predictable manner.”¹³⁵ To laud Slaughter-House for creating a workable rule would be a mistake. The opinion created a bright-line rule that refused to incorporate any provision of the Bill of Rights.¹³⁶ This rule is easy for lower courts to apply in the same way that the following absurd, bright-line interpretation would be easy to apply: Suppose the Court held that “Speech” in the First Amendment¹³⁷ context must be construed in the same manner as “Speech” described in Article I’s Speech and Debate Clause.¹³⁸ That construction would be easy for lower courts to apply due to the narrow circumstances in which Speech and Debate Clause issues arise. However, workability through absurdity should not suffice.¹³⁹

D. The Disruptive Effect on Other Areas of Law

A precedent that has distorted other legal doctrines is more suitable for overruling.¹⁴⁰ Although achieving substantially similar results, the closing off of incorporation via the Privileges or Immunities Clause caused jurists who did not want to overrule Slaughter-House to distort the Fourteenth Amendment’s Due Process Clause in order to incorporate the Bill of Rights against the states.¹⁴¹ Due Process Clause distortion caused two nasty ailments.

First, the incrementalist incorporation route required Justices to inquire whether a provision of the Bill of Rights was “fundamental to our scheme of ordered liberty” with “dee[p] root[s] in [our] history and tradition.”¹⁴² Part of the rationale for Constitution-related precedent being weaker is the high bar for amending the Constitution.¹⁴³ When a provision of the Constitution enumerates a right, it is self-evident that a great majority of American voters considered the provision sufficiently fundamental to make it part of the nation’s foundational legal document. Judicial inquiry into whether a provision is important enough to be elevated to fundamental status is improper. The entire Bill of Rights is fundamental to liberty. The Anti-Federalists who pressed for a bill of rights in the Constitution did so partly because they believed some liberties were so fundamental that their inclusion in the nation’s founding document was necessary.¹⁴⁴

Second, the absorption of unenumerated-rights analysis into substantive due process¹⁴⁵ let the Ninth Amendment wither on the vine. Justices rarely refer to the Amendment. In Griswold v. Connecticut, Justice Goldberg penned a concurrence that examined the Ninth Amendment at length.¹⁴⁶ But aside from this single concurrence and occasional fleeting references,¹⁴⁷ the Court has ignored a provision of the Constitution that is no less deserving of interpretation and application than any other.¹⁴⁸ The absence of the Ninth Amendment in the Court’s unenumerated-rights jurisprudence is a consequence of the growth of substantive due process and neglect of the Privileges or Immunities Clause.¹⁴⁹

In sum, Slaughter-House has had the disruptive effect of implicitly disparaging some provisions of the Bill of Rights as nonfundamental while stunting the growth of Ninth Amendment jurisprudence. Those two consequences have damaged the Constitution and counsel in favor of overruling Slaughter-House.

E. Developments Since the Case Was Decided

A precedent is significantly weakened when the grounds for the decision have been “eroded” by the Court’s subsequent decisions.¹⁵⁰ A crucial aspect of the reasoning in Slaughter-House was its result-oriented approach that did not want incorporation to transform the Constitution into a “perpetual censor”¹⁵¹ of state legislatures.¹⁵² However, the majority’s fear has already been realized due to substantive due process’s subsequent metastasis. The vast majority of the Bill of Rights is already incorporated against the states.¹⁵³ At the 2018 oral argument for Timbs, Justice Gorsuch and Justice Kavanaugh were incredulous that Indiana’s solicitor general was contesting incorporation of any part of the Bill of Rights.¹⁵⁴ The subsequent legal developments of near-total incorporation have obliterated the result-oriented reasoning that grounded the Slaughter-House majority opinion. The ensuing legal developments counsel strongly in favor of overruling Slaughter-House.

F. The Absence of Concrete Reliance

People have concrete reliance on the rights that substantive due process preserves, but this reliance is separate from reliance on the procedural mechanism itself. Their reliance would only be concrete if abrogating substantive due process would also mean that the Bill of Rights was not incorporated against the states. Adoption of the PI + 9 Framework would avoid such issues.

The primary concrete reliance interests that would be upset by Slaughter-House being overruled would be those that rely on the unincorporated parts of the Bill of Rights remaining unincorporated. Today, the Third Amendment, the Fifth Amendment’s Grand Jury Clause, and the Seventh Amendment are the only enumerated rights that remain unincorporated.¹⁵⁵

The Third and Seventh Amendment present inconsequential reliance interests. The Third Amendment’s incorporation would be the least substantial because situations that lead to Third Amendment litigation are exceedingly rare.¹⁵⁶ Similarly, the Seventh Amendment’s incorporation would change little. Only three states lack a right to a civil jury trial in their state constitutions: Colorado, Louisiana, and Wyoming.¹⁵⁷ However, the right to a civil jury trial can be found elsewhere in those three states. The rules of civil procedure for Colorado,¹⁵⁸ Louisiana,¹⁵⁹ and Wyoming¹⁶⁰ allow a party to demand a jury trial. Accordingly, incorporating the Third and Seventh Amendment would change little for states or private parties.

Incorporating the Fifth Amendment’s Grand Jury Clause presents the greatest reliance-interest issues of the amendments that prescribe enumerated rights. States without a grand jury requirement have reliance interests in preserving the finality of criminal judgments and avoiding the costs associated with implementing an institution for criminal prosecutions—the grand jury.¹⁶¹

The finality of criminal judgments in state courts would likely remain intact despite incorporation of the Grand Jury Clause. In Edwards v. Vannoy, the Supreme Court refused to retroactively apply the Ramos jury-unanimity rule on federal collateral review.¹⁶² Given the refusal in Edwards to retroactively apply the unanimous jury verdict requirement from Ramos on federal collateral review,¹⁶³ it seems unlikely that the Court would rule differently if the Grand Jury Clause were incorporated. To apply the requirement retroactively, the Court would need to apply a rare exception that it described as “moribund” in 2021.¹⁶⁴

A state’s reliance interest in avoiding the costs associated with grand juries is the most significant reliance interest jeopardized by total incorporation of the Bill of Rights. However, reliance-interests analysis usually concerns the costs borne by private parties, not the government.¹⁶⁵ All but two states, Pennsylvania and Connecticut, still have grand jury indictment as part of their criminal procedure scheme—even if twenty-eight states do not require a grand jury indictment.¹⁶⁶ The familiarity with the grand jury as an institution and the existence of the institution in all but two states limit the extent to which incorporating the Grand Jury Clause would upset reliance interests. Moreover, the Court has repeatedly incorporated procedural protections against states despite the attendant costs.¹⁶⁷ Such decisions evince a belief in the relative unimportance of a state’s reliance interest in maintaining criminal laws and procedures that are inconsistent with the Constitution. As Justice Gorsuch wrote in Ramos, the most essential reliance interests are “the reliance interests of the American people.”¹⁶⁸ Given the relatively meager reliance interests that would be affected by overruling Slaughter-House, the reliance interests factor weighs only slightly against overruling the precedent.

Weighing the stare decisis factors as a whole in a manner consistent with the Court’s recent application of those factors, Slaughter-House should be overruled. Accordingly, the Fourteenth Amendment’s Privileges or Immunities Clause should incorporate every right in the Bill of Rights against the states.

IV. SUBSTANTIVE DUE PROCESS MUST END

Substantive due process is a doctrine with severe flaws. As will be explained below, the doctrine cannot justify itself with anything but a result-oriented conclusion. However, even that justification is unsatisfying because substantive due process is not the best means to protect individual liberties against state infringement—the Privileges or Immunities Clause is. The result is a disjointed Fourteenth Amendment and an ineffectual Ninth Amendment.

A. Substantive Due Process Fails to Justify Itself with Reason and Impedes a Harmonious Fourteenth Amendment

The Fourteenth Amendment’s Due Process Clause seems, on its text’s face,¹⁶⁹ to be an inapt mechanism to incorporate the Bill of Rights against the states. After all, the Due Process Clause describes process, not substance.¹⁷⁰ Over the years, several Supreme Court Justices have recognized the contradiction in terms for the folly that it is.¹⁷¹ Other Supreme Court Justices have employed substantive due process without defending the mechanism itself.¹⁷² Stranger yet, however, is when Justices who have openly expressed their distaste for substantive due process have nonetheless approved its use in applying the Bill of Rights to the states.¹⁷³

Despite substantive due process’s status as the favored means to incorporate the Bill of Rights against the states, the method has failed to justify itself by any means other than a result-oriented approach. This approach would be more understandable if a more apt provision of the Constitution could not accomplish the same objectives. The Privileges or Immunities Clause can achieve those objectives and would do so with greater force, clarity, and efficiency.

Furthermore, revitalizing the Privileges or Immunities Clause while curtailing substantive due process would harmonize the Fourteenth Amendment’s Due Process Clause, Equal Protection Clause, and Privileges or Immunities Clause. The Due Process Clause would consider only “procedural fairness.”¹⁷⁴ The Equal Protection Clause would address equality alone.¹⁷⁵ The Privileges or Immunities Clause would set a baseline of substantive rights that no state may abridge.¹⁷⁶ The failure to harmonize the three above-mentioned Fourteenth Amendment clauses puts rights on weaker footing.

B. Substantive Due Process Shortchanges the Ninth Amendment

Any construction that renders a constitutional provision superfluous is “inadmissible, unless the words require it.”¹⁷⁷ Chief Justice Marshall’s proscription against superfluous constructions was farsighted, and its logic extends to the wounds substantive due process has inflicted on the Ninth Amendment. The established doctrine the Court employs to evaluate whether the Constitution protects an unenumerated right is substantive due process.¹⁷⁸ The repeated¹⁷⁹ resort to the Due Process Clause to achieve purposes for which it was never intended,¹⁸⁰ and to which it is ill-suited, shortchanges the Ninth Amendment and renders it superfluous.¹⁸¹ Furthermore, to render the Ninth Amendment superfluous does more than flout one of Chief Justice Marshall’s memorable axioms. The failure to ground unenumerated-rights jurisprudence in the constitutional provision most suited to that purpose puts jealously guarded individual liberties at risk.

The Ninth Amendment offers the protection that unenumerated rights deserve. Regarding one such precious unenumerated right, Chief Justice Warren wrote for a unanimous Court that, “[u]nder our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the state.”¹⁸² The right to interracial marriage is one of many precious unenumerated rights that deserves better protection than what a procedural clause can offer. The Ninth Amendment can secure those rights better than substantive due process. Any defense of substantive due process to defend an unenumerated right disserves the very rights the doctrine purports to protect. Substantive due process must be abrogated so that Ninth Amendment jurisprudence can become the sentinel of unenumerated rights.

V. UNENUMERATED RIGHTS: THE ELEPHANT IN THE ROOM

The biggest challenge to adopting an expansive construction of the Privileges or Immunities Clause may be getting Justices to agree on a test for whether the Constitution protects a particular unenumerated right. Fortunately, there is a consensus about protecting some unenumerated rights.¹⁸³ This Part argues that the Ninth Amendment should protect unenumerated rights and considers which test is appropriate for accomplishing that objective.

A. Justices Across the Spectrum Want to Protect Unenumerated Rights

The Dobbs v. Jackson Women’s Health Organization majority was quick to emphasize that its elimination of an unenumerated constitutional right to abortion should not “be understood to cast doubt on precedents that do not concern abortion.”¹⁸⁴ In his concurring opinion in Dobbs, Justice Kavanaugh expressed support for Supreme Court precedents concerning marriage and contraception.¹⁸⁵ The Dobbs dissenters believed that it was not possible to decouple the precedents concerning marriage and contraception from the precedents concerning abortion.¹⁸⁶ The fact that both sides agreed in Dobbs that at least some unenumerated rights were protected by the Fourteenth Amendment’s Due Process Clause is some evidence of the broad support for constitutional recognition of some unenumerated rights.

B. The Ninth Amendment Is the Best Means to Protect Unenumerated Rights

The Ninth Amendment shares at least two things in common with the Privileges or Immunities Clause. First, both have been mostly read out of the Constitution.¹⁸⁷ Second, substantive due process has haphazardly achieved some of each’s overarching goals.¹⁸⁸

There is a broad consensus that the Constitution protects some unenumerated rights.¹⁸⁹ And if the Constitution protects unenumerated rights, those rights ought to be safeguarded by a framework sturdier than the flimsy, contradictory substantive due process approach. Substantive due process’s embrace of unenumerated-rights jurisprudence would be more understandable if no part of the Constitution dealt explicitly with the issue of unenumerated rights. Fortunately, this is not the case. A provision that discusses unenumerated rights exists, and that provision is the Ninth Amendment, which states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”¹⁹⁰

The decision to craft a jurisprudence about unenumerated substantive rights in a procedural clause is confounding in light of the Ninth Amendment. The Supreme Court has traditionally declined to hold that the Ninth Amendment is the source of substantive rights.¹⁹¹ Indeed, the Ninth Amendment does not specify which rights were retained by the people. The only body with the power and qualifications necessary to decide which rights are retained by the people is the federal judiciary. The “province and duty of the judicial department to say what the law is”¹⁹² extends to expounding and interpreting which rights are “retained by the people”¹⁹³ under the Ninth Amendment.

C. Finding the Right Test for Identifying Protected Unenumerated Rights

The Supreme Court must choose a proper, workable rule of law for lower courts to apply when deciding Ninth Amendment cases if the Court were to adopt the PI + 9 Framework. The Ninth Amendment seems so open to interpretation that it could create Pandora’s box concerns that may produce workability problems.¹⁹⁴ Indeed, the Court has recently cited unworkability in both constitutional¹⁹⁵ and statutory¹⁹⁶ cases as a key reason for overruling precedents. However, substantive due process raises the same Pandora’s box predicaments,¹⁹⁷ yet the Court has had little trouble applying substantive due process in recent years.¹⁹⁸ Indeed, when the Court overruled Roe and Casey, the Court insisted on being guided by “history and tradition” in order to avoid the “freewheeling judicial policymaking that characterized discredited decisions such as Lochner v. New York.”¹⁹⁹

However, if the Court were to hand down a landmark Ninth Amendment decision, it would have ultimate authority to say what the law is and could choose any test it desired. The Court ought not to be frozen by a fear of political backlash or public outcry when deciding the cases and controversies that it has the power to decide under Article III.²⁰⁰ In 2022, the Court acknowledged the importance of deciding cases based on principles, “not social and political pressures.”²⁰¹ A wise Justice once said of the Court, “We are not final because we are infallible, but we are infallible only because we are final.”²⁰² The Court ought to trust itself enough to exercise the power vested in it by the Constitution to interpret and construe the Ninth Amendment. Several options abound—ranging from ignoring the Ninth Amendment to presuming liberty—for the Court if it adopts the PI + 9 Framework.

The Ink Blot Approach: Disregarding the Ninth Amendment

Judge Robert H. Bork infamously compared the Ninth Amendment to an “ink blot” that the Court should not interpret.²⁰³ Judge Bork’s conception should be rejected because it underestimates the judiciary’s abilities, ignores history, and is impractical.

Judge Bork’s interpretation should be rejected because it ignores a provision of the Constitution due to its potential for being difficult to interpret. Judge Bork underestimated the Court. The “task of translating the majestic generalities of the Bill of Rights” is daunting.²⁰⁴ However, this task is the province and duty of the judges who comprise the federal judiciary.²⁰⁵ There is no exception to this province and duty in cases that raise complex and profound questions.

Furthermore, Judge Bork’s conception is not historically defensible from any conceivable originalist perspective.²⁰⁶ For Anti-Federalists, enumerating any rights was dangerous because doing so could be construed to imply the nonexistence of other rights.²⁰⁷ James Madison acknowledged this criticism when he defended the Constitution’s ratification and offered a provision, which became the Ninth Amendment, that expressly guaranteed protection for unenumerated rights.²⁰⁸ Although Ninth Amendment scholars have come to vastly different conclusions—from natural-rights readings²⁰⁹ to readings emphasizing control for local governance²¹⁰—it appears there was more underneath the ink blot than Judge Bork thought.

Finally, Judge Bork’s conception is impractical. Some unenumerated-rights protections, including those for contraception and same-sex marriage, enjoy support from Justices across the ideological spectrum. The differences are in degree, not kind. For example, the Dobbs majority opinion, a concurring opinion, and the joint dissenting opinion all claimed to stand for unenumerated rights other than abortion.²¹¹ The idea of stripping all unenumerated rights of constitutional protection is simply unthinkable. For example, the right to interracial marriage is unenumerated.²¹² However, any prominent person who suggests that it is not a right protected by the Constitution is instantly and vociferously rebuked.²¹³ Aside from its indefensibility as a matter of history and principle, the idea that all unenumerated rights would be summarily stripped of constitutional protection is beyond the realm of realistic possibilities.

The Presumption of Liberty Approach: Ninth Amendment Maximalism

Randy E. Barnett has written extensively on the Ninth Amendment²¹⁴ and has his own grand Ninth Amendment theory. Under Barnett’s theory of unenumerated rights, one could first conduct an originalist analysis to determine which unenumerated rights get constitutional recognition.²¹⁵ However, Barnett conceded that originalist materials would be insufficient to recognize all the rights worthy of Ninth Amendment protection, so the sphere of unenumerated rights would be even more expansive than originalism could contemplate.²¹⁶ Barnett advocated a framework that presumes liberty for unenumerated rights.²¹⁷ Presuming liberty would place the burden on the government to establish why any government infringement on individual freedom is both necessary and proper, rather than assuming constitutionality when possible.²¹⁸ In determining when liberty should be presumed, Barnett’s dividing line is a rightful/wrongful conduct distinction.²¹⁹

Barnett’s contributions to Ninth Amendment scholarship are admirable, but his solutions are quixotic. First, to presume liberty would be to undo fundamental canons of construction. Established canons of constitutional construction dating back to the early nineteenth century demand that “[n]o court ought, unless the terms of an act rendered it unavoidable, to give a construction to [a statute] which should involve a violation, however unintentional, of the constitution.”²²⁰ To reverse the paradigm to one in which the federal judiciary seeks to strike down laws that touch so-called “rightful activity”²²¹ would be catastrophic. The current Court’s desire to take more issues out of constitutional law and insert them into the democratic process is at odds with Barnett’s framework.²²²

Aside from the current Court’s probable unwillingness to adopt the kind of radical shift that Barnett supports, workability concerns are sufficient to reject Barnett’s framework. In recent years, the Court expressed frustration with unworkable rules of law and overruled precedents on that basis.²²³ The idea that the Court would adopt a rightful/wrongful conduct test for trial and appellate courts to apply to every piece of legislation is fantasy.

To be sure, Barnett’s theory is far from the only Ninth Amendment framework. Many theories abound.²²⁴ For example, Kurt T. Lash’s theory considers the Ninth Amendment through a federalism prism that emphasizes retained powers in addition to retained rights.²²⁵ In any event, Barnett’s presumption-of-liberty theory represents the opposite of Judge Bork’s ink-blot theory. Between Barnett’s Ninth Amendment maximalism and Judge Bork’s Ninth Amendment ignorance lie too many possibilities to ponder in this Note.

An ideal rule for the Court to adopt in inaugurating its Ninth Amendment jurisprudence would be one that is workable, in line with current precedents, and moored by “respect for the teachings of history.”²²⁶ A workable rule of law would promote consistency and predictability to a constitutional provision that many may fear due to its unpredictability.²²⁷ A rule of law in line with current precedents regarding unenumerated rights would prevent the instability that a brand-new rule might invite. A rule of law grounded in respect for history and tradition would avoid the open-ended judicial activism of the Lochner era.²²⁸

Glucksberg’s Goldilocks Test

Fortunately, there is an established test that is workable and guided by history. Further, this test is more than merely consistent with current precedents—it is current precedent.

The Court adopted a sensible unenumerated-rights framework in Washington v. Glucksberg.²²⁹ The framework requires a “careful description” of the asserted liberty interest.²³⁰ The careful description provides a buffer against broad assertions of a liberty interest that could mean anything and everything. Additionally, adopting an approach that describes a liberty interest rather than a retained right²³¹ is appropriate because liberty and right have been used interchangeably since the American Revolution.²³² Then, there is a two-pronged test for deciding whether the Due Process Clause protects a right, and this framework applies to evaluating unenumerated rights.

First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition (“so rooted in the traditions and conscience of our people as to be ranked as fundamental”), and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed.”²³³

The above framework gets at the heart of the Ninth Amendment, even though it brands itself as a Due Process Clause analysis. The language about a right needing to be “objectively, deeply rooted in this Nation’s history and tradition”²³⁴ is appropriate for evaluating which rights have been “retained by the people.”²³⁵ For a right to be retained, the right could not have recently come into existence—thus the deeply rooted phrasing. This approach shows proper respect for history’s teachings, prefers judicial restraint and caution,²³⁶ and averts the unrestrained judicial activism of the Lochner era.²³⁷ The history-and-tradition prong also ensures that the Ninth Amendment would preserve an existing right. Any analysis that claims the Ninth Amendment is not the source of substantive rights²³⁸ is telling a lawyerly half-truth. The nation’s history and tradition are the source of the rights retained by the people in the Ninth Amendment.

The Glucksberg test also scores high in workability when lower courts have applied the test to purported unenumerated rights in various contexts.²³⁹ For example, not long after the Court decided Glucksberg, the Fourth Circuit Court of Appeals applied the two-pronged test to reject a petitioner’s asserted unenumerated right to be free from unjust or arbitrary incarceration.²⁴⁰ In another case, the Eighth Circuit Court of Appeals had no difficulty applying Glucksberg to uphold an Iowa statute limiting where sex offenders could reside.²⁴¹ In 2024, a federal district court judge in Murphey v. United States had little issue applying Glucksberg’s two-pronged test to reject a plaintiff’s asserted right to grow, possess, and use psychedelic and other drugs.²⁴² Additionally, in the district court’s application of the test in Murphey, the court looked to Supreme Court decisions that counseled against recognizing additional rights because “guideposts for responsible decisionmaking in this unchartered area [were] scarce and open-ended.”²⁴³ Lower courts have proven Glucksberg to be workable.

The second prong allows judges to ensure that sordid practices do not get constitutional protection merely for existing long enough to be deeply rooted in the nation’s history and tradition. As Justice Stevens observed in Bowers v. Hardwick, “neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.”²⁴⁴ However, the right to interracial marriage is beyond doubt implicit in the concept of ordered liberty.²⁴⁵ Moreover, there may be “room for play in the joints”²⁴⁶ between the first prong and second prong.²⁴⁷ The first prong may act as a nonabsolute constraint on the second prong. Regarding the relationship between the prongs, Justice Kennedy wrote, “History and tradition guide and discipline [the second prong] but do not set its outer boundaries.”²⁴⁸

To be sure, the second prong requires courts to “exercise reasoned judgment.”²⁴⁹ But the exercise of reasoned judgment is inherent to the judicial power. It is “emphatically the province and duty of the judicial department to say what the law is.”²⁵⁰ Neither political branch has the power to identify constitutional rights.²⁵¹ Thus, the proper body for identifying rights in the context of the Ninth Amendment is the judicial branch.²⁵² Through its substantive-due-process jurisprudence, the Court has already

recognized a number of unenumerated rights deemed to be fundamental.²⁵³ If it continues to do so, it ought to do so through the proper means: the Ninth Amendment. Doing so gives unenumerated rights a place in law that is more secure than substantive due process.

VI. THE FRAMEWORK APPLIED

The PI + 9 Framework would apply amendments one through nine to the states through the Privileges or Immunities Clause and conduct its unenumerated-rights inquiry under the Ninth Amendment by using the two-pronged Glucksberg test. Figure 1 shows how amendments one through nine would apply to state governments under the PI + 9 Framework.

Figure 1. The PI + 9 Framework

A. The Framework for Enumerated Rights

The PI + 9 framework has the benefit of simplicity, especially as the framework applies to enumerated constitutional rights, such as the right to bear arms.²⁵⁴ Under the PI + 9 Framework, the Second Amendment would apply to the states via the Privileges or Immunities Clause. There would be no need to consider whether the Second Amendment is implicit in the concept of ordered liberty because it would automatically be incorporated via the Privileges or Immunities Clause. A judge would only consider whether the state law violates the Second Amendment, which would get to the heart of the issue more quickly than a gratuitous rehashing about the wisdom or foolishness of substantive due process. Under the PI + 9 Framework, the state law would be analyzed in accordance with pertinent Second Amendment precedents, such as New York State Rifle & Pistol Association v. Bruen²⁵⁵ and District of Columbia v. Heller.²⁵⁶

In any opinion concerning a state law’s alleged abridgment of the Second Amendment, the Court would quickly state what is clear from the text, legislative history, and original intent,²⁵⁷ which is that the Privileges or Immunities Clause applies every right in the Bill of Rights to the states. Then, the Court would decide whether the state law at issue violates the Second Amendment. In the Second Amendment context, the prevailing test remains the test from Bruen.²⁵⁸ Any difficulties arising from applying Bruen²⁵⁹ could be hashed out purely within the confines of the Second Amendment. Full incorporation takes distracting debates about substantive due process off the table and decreases judicial discretion as it relates to incorporation. The focus would be more on the right itself rather than the procedure by which the right in question is incorporated.

PI + 9 Applied to a Hypothetical About an Enumerated Right

Assume the following hypothetical factual scenario:

After increasing pressure from the public, Iowa enacts Statute One,²⁶⁰ which criminalizes the “carrying, transportation, or possession of any firearm on the grounds of any public school in the state of Iowa.” After Statute One’s enactment, Tina attends a parent-teacher conference at a public school in Marion, Iowa, with a loaded Glock 17 pistol in a holster on her hip. After seeing the holstered pistol, a student at the school calls the police, and the police arrive at the school and arrest Tina. Tina is charged with violating Statute One, and a jury convicts her in Linn County District Court. The Iowa Court of Appeals affirms the conviction. Tina petitions for a writ of certiorari to the Supreme Court of the United States, challenging her conviction and alleging that Statute One violates the Second Amendment to the United States Constitution. The Supreme Court of the United States grants certiorari.

Under these facts, a Court using the PI + 9 Framework would state that the Second Amendment applies to the states through the Fourteenth Amendment’s Privileges or Immunities Clause.²⁶¹ No inquiry would occur into whether the Second Amendment right is deeply rooted or implicit in the concept of ordered liberty. Once incorporated, the Second Amendment would operate “identically to both the Federal Government and the States.”²⁶² Given that, the Court would apply the pertinent Second Amendment precedents.

The Court would apply Bruen’s inquiry and make the government “demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”²⁶³ Here, the Court could look to a precedent like Heller, which held that forbidding firearms in “sensitive places such as schools” was permissible and consistent with historical restrictions.²⁶⁴ The Court could also conduct a historical analysis to confirm or reject the view set forth in Heller about the presumptively lawful nature of prohibitions against guns in schools.²⁶⁵ Under the hypothetical set of facts, the Privileges or Immunities Clause would mandate that the Second Amendment be applied to the Iowa government. The Supreme Court’s precedents on the Second Amendment would control, and the petitioner’s conviction would likely be upheld.

The Framework for Unenumerated Rights

The PI + 9 Framework for unenumerated rights requires just a few more steps than the PI + 9 Framework for enumerated rights. First, the Court would incorporate the Ninth Amendment against the states via the Fourteenth Amendment’s Privileges or Immunities Clause.²⁶⁶ Then, the Court would carefully describe the liberty interest at stake in accordance with Glucksberg’s “careful description” mandate.²⁶⁷ After formulating a careful description of the asserted unenumerated right at issue, the Court would analyze under the Ninth Amendment²⁶⁸ whether (1) the right is “deeply rooted in this Nation’s history and tradition”;²⁶⁹ and (2) whether the right is “implicit in the concept of ordered liberty.”²⁷⁰ If the Court answered yes to those two questions, the Ninth Amendment would protect the right from infringement by the federal government and state governments.

PI + 9 Applied to a Hypothetical About an Unenumerated Right

Assume the following hypothetical factual scenario:

After a public campaign against homeschooling, California enacts Statute Two, which mandates, “No parent may homeschool their child, and all children must attend an accredited private or public school. Parents who violate this statute are guilty of a felony.” Tom is a parent in Los Angeles, California who homeschools his son. After Statute Two’s enactment, Tom continues homeschooling his child because he believes he can provide a better education for his son than any nearby public or private school. After a neighbor reports Tom to the police for homeschooling, Tom is arrested and charged with violating Statute Two. Tom is convicted of violating Statute Two in the Los Angeles County Superior Court and appeals to the California Second District Court of Appeal, which affirms his sentence. Tom petitions for a writ of certiorari to the Supreme Court of the United States, challenging his conviction and alleging a violation of his Ninth Amendment right to homeschool his child. The Supreme Court of the United States grants certiorari.

Under these facts, a Court using the PI + 9 Framework would first note that the right at issue here is not enumerated in the Constitution. Thus, a Ninth Amendment inquiry is apt. The Court would quickly explain that the Privileges or Immunities Clause applies the Ninth Amendment to the states. Then, the Court would carefully describe the right at issue in the instant case, which is the right to homeschool one’s child. After carefully describing the right, the Court would answer each Glucksberg prong: (1) whether the right is deeply rooted in the nation’s history and tradition; and (2) whether the right is implicit in the concept of ordered liberty.

Under the first prong, the Court would be free to conduct an independent historical analysis. Homeschooling in America predates the American Revolution.²⁷¹ Many colonies passed laws in the seventeenth century that required parents to educate their children.²⁷² Colonial fathers were expected to teach their children reading and religion.²⁷³ Abigail Adams homeschooled her children, and the Adams family was not unique among New Englanders in this respect.²⁷⁴ Before the Civil War, enslaved people used home education as a means to defy racist anti-literacy laws.²⁷⁵ Today, homeschooling is legal in all fifty states,²⁷⁶ except for the fictitious California in the hypothetical.

Additionally, early-twentieth-century Supreme Court cases decided issues related to the right of parents to make decisions about their child’s education. If the Court decided that the early twentieth century was early enough to inform the history-and-tradition inquiry, the Court could cite Pierce v. Society of Sisters²⁷⁷ and reaffirm Pierce’s proposition that parents have a right “to direct the upbringing and education of children under their control.”²⁷⁸ The Court could also rely on Meyer v. Nebraska, which held that “[c]orresponding to the right of control, it is the natural duty of the parent to give his children education suitable to their station in life.”²⁷⁹ The cases recognizing a right of parents to control the upbringing of their children are more than one hundred years old. Those cases, in addition to historical evidence, buttress the proposition that the right to homeschool one’s children is deeply rooted. The Court would answer (1) in the affirmative and move on to answering whether the right to homeschool one’s children is implicit in the concept of ordered liberty.

The Court would likely also answer (2) in the affirmative and hold that the right to homeschool one’s child is implicit in the concept of ordered liberty. In Meyer, the Court held that the right to “establish a home and bring up children” was protected by the Constitution.²⁸⁰ Additionally, the right to homeschool one’s child could be drawn within the sphere of “related rights of childrearing, procreation, and education” that the Court has recognized.²⁸¹ Under sufficiently analogous precedents and the exercise of reasoned judgment, the Court would hold that the right to homeschool one’s children is implicit in the concept of ordered liberty. After carefully describing the right at issue and satisfying Glucksberg’s two prongs, the Court would hold that the Ninth Amendment protects the right to homeschool one’s children and would void Statute Two.

VII. ADVANTAGES OF THE PI + 9 FRAMEWORK

The PI + 9 Framework has three main advantages: (1) it provides a stronger mechanism for protecting individual rights; (2) it is a more efficient, clear, and appropriate means by which to incorporate the Bill of Rights; and (3) it could lead to the development of Ninth Amendment jurisprudence.

A. Putting Individual Rights on Stronger Footing

The primary advantage of the PI + 9 Framework is that it puts the precious civil liberties enshrined in the Constitution on stronger footing. Every single right recognized by substantive due process is always somewhat in doubt because of the dubious, wobbly nature of the doctrine. Why risk it? Those alarmed by Justice Thomas’s concurrence in Dobbs,²⁸² which suggested that all substantive due process precedents ought to be reconsidered, have nobody to blame but themselves if they previously championed a flawed doctrine like substantive due process. Individual substantive rights are too important to leave behind the unlocked door of a process-related clause. The PI + 9 Framework gives substantive rights the defense they deserve by providing power to the text, history, and intent of the Privileges or Immunities Clause.

B. Efficiency, Clarity, and Respect for the People’s Amendments

The PI + 9 Framework offers a better approach to incorporation than substantive due process. Glucksberg’s application to enumerated rights is inappropriate, inefficient, and unclear. It is inappropriate because a judge should not answer whether an amendment to the Constitution is sufficiently important to qualify as a sort of “super right” to be incorporated against the states. Each provision of the Bill of Rights was important enough for two-thirds of Congress and three-fourths of the states²⁸³ to add the provision to the nation’s founding document. Furthermore, it is inefficient because it requires a two-pronged analysis for provisions that were clearly fundamental enough to liberty to be included in the Constitution and are part of the nation’s history and tradition since 1791. Finally, there is a lack of clarity as to why some amendments in the Bill of Rights are more vital to liberty than others. As Justice Thomas wrote in McDonald, a Privileges or Immunities Clause analysis is “far more likely to yield discernible answers” than substantive due process.²⁸⁴ If the Court were to adopt the PI + 9 Framework, there would be no more ink spilled or time wasted defending substantive due process. The Court could instead get to the business of interpreting what each provision of the Bill of Rights means and how it ought to be construed and applied to the facts of a case.

C. Development of Ninth Amendment Jurisprudence

Another benefit of the PI + 9 Framework is the development of Ninth Amendment jurisprudence. In carrying out its duty to “say what the law is,”²⁸⁵ the judicial branch ought to tell the American people what the Ninth Amendment means. Scholars may argue about the proper interpretation and construction of the Ninth Amendment, and this Note advocates Glucksberg’s two-pronged approach. Such words are wind. Only the judiciary can give meaning to the Constitution’s text. Perhaps this will mean freezing the American people’s rights as of 1791 or 1868.²⁸⁶ Perhaps this will mean a presumption of liberty that would drastically curtail the role of government in Americans’ lives.²⁸⁷ Perhaps this will mean adopting Glucksberg’s two-pronged approach. However, the first Court opinion that grounds itself in the Ninth Amendment could give birth to a new age of Ninth Amendment scholarship and jurisprudence aimed at discovering the proper meaning and construction of the Ninth Amendment. Each time the Court is tempted to defer interpretation of the Ninth Amendment and choose the more well-trodden path of substantive due process, the Court instead ought to heed the words of Chief Justice Marshall: “It cannot be presumed that any clause in the [C]onstitution is intended to be without effect; and therefore such a construction is inadmissible, unless the words require it.”²⁸⁸

CONCLUSION

The PI + 9 Framework secures rights in a more robust, efficient, and clear manner than substantive due process does. Substantive due process is worse than a mere contradiction in terms. The ever-expanding reach of substantive due process has robbed two provisions of the Constitution—the Privileges or Immunities Clause and the Ninth Amendment—of the importance they deserve. Any stare decisis issues would be more well-founded if most of the Bill of Rights had not already been incorporated. Moreover, the substantive changes that replacing substantive due process with the PI + 9 Framework would cause are the incorporation of the Third Amendment, the Fifth Amendment’s Grand Jury Clause, and the Seventh Amendment, and using the current controlling framework for unenumerated rights. Thus, adopting the Framework would not cause a significant expansion or diminution in substantive rights. Far from an expansion or diminution, the PI + 9 Framework offers enumerated and unenumerated rights the durable, efficient, and clear protection that American privileges and immunities deserve.

99 S. Cal. L. Rev. 359

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Lincoln Son Currie*

*Articles Editor, Southern California Law Review, Volume 99; J.D. Candidate 2026, University of Southern California Gould School of Law; B.S. 2023, Boston University. I thank my supervisor, Professor Rebecca Brown, for providing me with careful suggestions and guidance as I wrote this Note. I am grateful to the editors of the Southern California Law Review for their diligence in improving this Note. All errors are my own.

Pants on Fire: How the Brinkmann Majority Forgot About the Takings Clause in a Takings Clause Case

March 2026March 2026Anna Fein*

INTRODUCTION

In 2016, Ben and Hank Brinkmann (the “Brinkmanns”) embarked on a journey of building a hardware store on an empty, commercially zoned lot in the Town of Southold, New York (“the Town”).¹

In 2017 and early 2018, the Brinkmanns met with the Town Planning Department to “create and revise site plan applications” for the hardware store.² At the beginning of 2018, the Brinkmanns filed their first permit application.³ This application contained a site plan, which allegedly underwent two rounds of revisions while implementing the Planning Department’s requests.⁴ The Town denied the permit three months later. The Brinkmanns claimed that the Town informed them that “no site plan had been approved by the Planning Department.”⁵ In May 2018, the Brinkmanns again applied for site plan approval.⁶ In July 2018, the Town allegedly demanded that the Brinkmanns pay for a $30,000 Market and Municipal Impact Study.⁷ According to the Town, such a market study was required because the Brinkmanns wanted to “construct a big box hardware store in a small, semi-rural hamlet on eastern Long Island,”⁸ which was not in the best interest of the Town.

There are two sides to every story, and this is where the stories begin to significantly diverge. For their part, the Brinkmanns allege that the Town never conducted the $30,000 study they paid for, despite being legally required to do so.⁹ Yet the Town asserted that it had “complied procedurally and substantively with New York eminent domain law.”¹⁰

The Brinkmanns argue that the Town chose to acquire their parcel despite the availability of an adjacent undeveloped plot of land, which the Town “never [even] considered acquiring.”¹¹ The Brinkmanns further allege that in October 2018, the Town took even more “drastic measures,” “pressur[ing]” the bank to breach its own “purchase contract [with the Brinkmanns] for the vacant lot” and demanding that the bank enter into a purchase contract with the Town of Southold instead.¹² The Brinkmanns were “[u]ndeterred” by the Town’s intimidation tactics.¹³

In February 2019, the Town enacted a six-month moratorium on new building permits.¹⁴ The Brinkmanns argue that the moratorium was limited to a “one-mile stretch of road,” essentially targeting their lot.¹⁵ The Town claims, however, the six-month moratorium was on “any new building permits along one mile of Route 25, which included the Brinkmanns’ proposed site, among several other businesses.”¹⁶

The Town then twice extended the moratorium—first in August 2019 and then again in July 2020.¹⁷ The Brinkmanns allege that the Town extended the moratorium contrary to Suffolk County’s disapproval and despite lacking any evidentiary support for these moratoriums.¹⁸ The Town also generously gave out moratorium waivers, but not to the Brinkmanns.¹⁹ The Town emphasizes the Brinkmanns never applied for such a waiver in the first place—an application which the Brinkmanns “believed [would be] futile, as the moratorium was clearly target[ing them].”²⁰ In May 2019, the

Brinkmanns sued the Town to end the moratorium.²¹ In June 2020, “[t]he state trial court denied the Town’s motion to dismiss.”²²

In August 2020, the Planning Board “held a public hearing on the proposed project to build a public park” on the Brinkmanns’ lot.²³ In September 2020, the Town issued a “Findings and Determination” in which it concluded that the “acquisition [of the Brinkmanns’ lot would] benefit the public” because a public park would allow “the residents of Mattituck and Southold . . . the opportunity to create . . . [a] community gathering place.”²⁴ In May 2021, the Town “initiat[ed] condemnation proceedings on the [Brinkmanns’ lot].”²⁵ The Brinkmanns note that the Town’s September 2020 announcement of the acquisition of their lot via eminent domain conveniently occurred shortly after the state trial court allowed the Brinkmanns to proceed with their moratorium claim against the Town.²⁶ The Brinkmanns also emphasize that the park the Town decided to build was a passive use park that lacks “any improvements” or facilities.²⁷

Moreover, a September 2020 article published in The Suffolk Times by Southold Town Board Member Sarah Nappa drew attention to the Brinkmanns. In the article, Nappa hints at there being good probability that the Town exercised its eminent domain power because it disliked the Brinkmann family.²⁸ Nappa opined that the Brinkmanns’ fate would have likely been different had they been members of the Town of Southold’s “old boys club,” as opposed to being community “outsider[s].”²⁹

In a 2-1 decision in 2024, the Second Circuit’s Brinkmann majority affirmed the lower court’s ruling in favor of the Town.³⁰ Even though the panel agreed that the Brinkmanns’ complaint alleged “facts sufficient to support a finding that the [Town’s] decision to create the park was a pretext for defeating the Brinkmanns’ commercial use”³¹ and conceded that the Town exercised its eminent domain power only after the failure of its various “regulatory hurdles,”³² the Brinkmanns still lost. So, what went wrong for the Brinkmanns?

Apart from examining the Brinkmann majority’s reasoning to answer this question, this Note proposes a heightened scrutiny analysis for bad-faith takings via the tripartite burden-shifting framework. Although this evidentiary framework was put forth in McDonnell Douglas Corporation v. Green,³³ an employment discrimination case, the application of the framework has not stopped there. The framework has also been applied by Daniel B. Kelly in the context of takings driven by “impermissible favoritism”: when a “favored private entit[y]” or person has a “benefit[]” conferred on them, “with only incidental . . . public benefits.”³⁴

What happened to the Brinkmanns, however, is arguably the exact opposite of favoritism. Thus, this Note extrapolates the tripartite burden-shifting framework to takings arising out of disfavor, from reasons ranging from discrimination and animosity to outright bias. Such an inquiry has largely gone unexplored due to the common assumptions that (1) strict deference to the legislature should somehow justify or excuse bad-faith takings or (2) the Equal Protection Clause is sufficient to address discriminatory takings. This Note will address both of these arguments and also illustrate what is at stake if bad-faith takings continue to slip consequence-free through the cracks of American jurisprudence.

Section I briefly provides an overview of takings in general, largely focusing on the history of the rapid expansion of “public use.” Section II explores Brinkmann’s reasoning, highlighting its many legal conclusions, each of which exhibits flaws. Section III focuses on the Ninth and Seventh Circuits to discuss the federal circuit split. Finally, Section IV examines the tension between rational basis review and some unspecified form of heightened scrutiny proposed by Justice Kennedy’s concurrence in Kelo v. City of New London.³⁵ Section IV then uses Justice Kennedy’s heightened scrutiny suggestion as an entry point to examining the tripartite burden-shifting framework and its application to takings motivated by discrimination and bias. After extrapolating Kelly’s scholarship to bad-faith takings, Section IV examines the perils of adopting rational basis review instead. Section IV further underscores why the Equal Protection Clause and the doctrine of unconstitutional animus, while attractive solutions at first glance, are actually inadequate to the task in this context. Section IV concludes with an assessment of Brinkmann’s societal impact.

I. HISTORY AND BACKGROUND: THE RAPID EXPANSION OF “PUBLIC USE”

The Takings Clause of the Fifth Amendment provides: “[N]or shall private property be taken for public use, without just compensation.” This clause applies to the states through the Fourteenth Amendment.³⁶ What the Takings Clause prohibits is governmental takings of private property without just compensation, not takings altogether.

So, what does “public use” encompass? Perhaps the more salient question, though, is what does “public use” exclude? Traditionally, the Takings Clause was used by governmental entities to “condemn and acquire property to be used by the public” in innocent, even useful, ways: for example, “building public roads or providing for utilities infrastructure” like electric transmission lines.³⁷ Most people acknowledged, understood, and even “appreciate[d]” this eminent domain power to condemn private property for conversion into public use, provided there was just compensation.³⁸ Without this inherent power to appropriate land, the public would not have highways, courthouses, post offices, and railroads (the so-called clear instances of public use).³⁹ And without these amenities and structures, society would probably cease to function. The public was relatively content with this interpretation of public use because everyone got their share: all members of the public had access to these public uses and “benefit from the system” that provided the “basics of modern life.”⁴⁰ But then something happened—an expansion of the concept of public use beyond highway-building.

Public use became an “amorphous concept, resistant to precise definition”⁴¹ and—conveniently for the government—began to be defined broadly.⁴² From its humble beginnings as a non-contentious issue, eminent domain erupted into a “hotly contested” area of law.⁴³ In 1908, the Supreme Court held in Hairston v. Danville & Western Railway Company “that it is beyond the legislative power to take . . . the property of one and give it to another for what the court deems private uses,” despite “full compensation.”⁴⁴ This was likely comforting to hear; members of the public probably understood this statement as the Court saying that taking private party A’s property to give it to private party B was off-limits. But then, private corporations began to seek the “power to condemn property for their own objectives.”⁴⁵ There had been a shift in takings jurisprudence.

In its 1925 Old Dominion Land Corporation v. United States decision, the Supreme Court emphasized that the legislative branch, as it pertains to public use, is “entitled to deference until it is shown to involve an impossibility.”⁴⁶ But the legislative branch’s limitless power to deem any non-impossible undertaking a public use was hardly the only facet of takings doctrine abused by both private and governmental entities.

In 1954, the Supreme Court decided Berman v. Parker.⁴⁷ In Berman, the Court allowed an administrative agency to take a non-blighted department store and redevelop it “so as to . . . prevent slum . . . housing conditions.”⁴⁸ The department store was also to be transferred to a “private development corporation for the purpose of curing blight.”⁴⁹ Petitioners argued that this would make it a “taking from one business [person] for the benefit of another.”⁵⁰ The Court ruled, however, that the so-called “means” of “executing [a] project are for Congress and Congress alone to determine”⁵¹ and that the “public end may be as well or better served through an agency of private enterprise . . . or so the Congress might conclude.”⁵²

So long as Congress believes that an act of conferring a private benefit from party A to party B “may” or “might” serve the public, such a taking is Berman-blessed. Thus, Berman found constitutional the District of Columbia Redevelopment Act of 1945—which, among other things, authorized sales of “condemned [private] lands to [other] private interests.”⁵³ Under Berman, public use essentially became synonymous with everything under the sun, just as long as the taking was justified by some nominal argument citing “public health, safety, morals, [or] welfare.”⁵⁴ But this Berman reiteration was hardly surprising in the context of Old Dominion. If anything, Berman was a case that truly legitimized hostility to private property owners, reinforcing public use as a broad concept that works to benefit governmental interests. Berman further underscored the irony that “public use” also serves to benefit private corporations that profit from such projects. This Note will return to Berman in Section IV.D to examine its catastrophic fallout.

In 1984, the Supreme Court decided Hawaii Housing Authority v. Midkiff, examining the validity of the Land Reform Act of 1967.⁵⁵ The Act authorized a transfer of titles from lessors to lessees, so as “to reduce the concentration of land ownership.”⁵⁶ This blunt conveyance of private property from party A to party B (a private beneficiary) neither raised concern nor constituted a taking “as having only a private purpose.”⁵⁷ So, although the Midkiff Court acknowledged that there was obviously some type of private purpose here (i.e., person B receiving person A’s private property), the Court emphasized that “[i]t is not essential that the entire community, nor even any considerable portion [of the community], . . . directly enjoy or participate in any improvement in order . . . to constitute a public use.”⁵⁸

Thus, under Midkiff the public use definition was even further expanded; a taking no longer even had to benefit a considerable portion of the community. This begs the question: how many members of the community would need to benefit for a taking to constitute a valid public use? Perhaps zero—if one subscribes totally to Berman-esque legislative deference where Congress might “conclude” that the public may be served in some way via a taking.

A basic overview of takings law cannot be complete without consideration of Kelo v. City of New London, a highly divisive 5-4 decision of the Supreme Court from 2005.⁵⁹ Kelo plays a major role in the Brinkmann decision, the unfortunate North Star of this Note. The Kelo majority authorized the taking of Susette Kelo’s “non-blighted”⁶⁰ little pink house in the name of a “speculative” economic development rationale.⁶¹ The little pink house and several others like it were to be torn down so Pfizer Inc., a private pharmaceutical company, could erect a $300 million research facility in their place.⁶² The New London Development Corporation (“NLDC”) wanted to erect this $300 million Pfizer facility so as to attract new commerce, create jobs, generate tax revenue, and help to “build momentum for the revitalization of downtown New London.”⁶³ This “momentum” also apparently included making New London more “attractive.”⁶⁴

Kelo’s most egregious overstep is that none of these public uses were actually reasonably expected to occur or even had to occur. They were merely alleged, and indeed, were “speculative” because neither Pfizer nor NLDC would be required to use the condemned property “in a way that [actually] bolsters the local economy.”⁶⁵ Viewed differently, not only is the conveyance of private benefit to a private party permissible under Kelo if there is embedded therein some whiff of public use, but this whiff of public use no longer even need be actualized. Instead, it can simply be hypothetical. And this line of criticism tracks with the Kelo majority, who emphasized the sufficiency of NLDC merely “believ[ing]” the development plan would benefit the community.⁶⁶ The Kelo majority further disagreed with Susette Kelo that there needs to be “reasonable certainty” that the “expected public benefit[]” will actually “accrue.”⁶⁷

Where did this absolute faith in what NLDC was alleging come from? One can cite federalism, as did the majority in virtually every federal decision upholding a taking. Sure, the Kelo majority said that the “amount and character of land to be taken” and the “need” for specific land “rests in the discretion of the legislative branch.”⁶⁸ Sure, to negate these consequences of lack of oversight, checks and balances, and even de minimis accountability, states can impose public use requirements that are “stricter than the federal baseline.”⁶⁹ But if states are the only ones who care about not “wash[ing] out” all distinctions between public and private uses, this will lead to a drastic discrepancy.⁷⁰ Justice Sandra Day O’Connor warns that, thanks to the Kelo majority, some states now might as well replace all “Motel 6[s] with . . . Ritz-Carlton[s],” or other little pink houses with shopping malls, or farms with factories, simply because they might revitalize or possibly beautify a city.⁷¹ Justice O’Connor further posits that if the legislative branch is the “sole arbiter[] of the public-private [use] distinction, the Public Use Clause [will] amount to little more than hortatory fluff.”⁷² Judicial checks on interpretation of public use are necessary if the Public Use Clause, as a “constraint on government power[,] is to retain any meaning.”⁷³

Moreover, as Justice O’Connor further points out, the true impact of such radical deference to the legislative branch will, of course, be disparate.⁷⁴ What happens when the government can take “private property currently put to ordinary private use,” such as homes and small family businesses, and “give it over” for new private use—a use that can, but does not have to, “generate some secondary benefit for the public”?⁷⁵ The “beneficiaries” will likely be large entities, development firms, and people with “disproportionate influence and power in the political process” at the expense of those with less resources.⁷⁶

After Kelo was decided, newly discovered evidence revealed that NLDC “blocked” a competitive bidding process for the site to guarantee that Pfizer would get it.⁷⁷ NLDC used eminent domain to “appease” Pfizer.⁷⁸ So much so that the President of NLDC wrote a letter to Pfizer before Pfizer announced its plans, promising to “meet Pfizer’s requirements.”⁷⁹ To this end, NLDC promised to “buy up all the[] properties [in Susette Kelo’s neighborhood], clearing the way for redevelopment in line with Pfizer’s wishes.”⁸⁰ And NLDC ultimately did everything to “entice[] Pfizer to join the project by letting Pfizer dictate the contours of the [redevelopment], including the decision to condemn the properties in [Susette] Kelo’s neighborhood.”⁸¹ None of this was known at trial, and one could certainly speculate that the Kelo decision may have been different had the Kelo Court

known about the driving force behind these vague promises of economic revitalization—or perhaps not.

Although these are seminal cases in takings jurisprudence, they focus solely on the act of conferring a private benefit on another private party through the transference of property rights. They do not discuss takings which are inherently driven by discrimination, racism, homophobia, or animosity toward condemnees. That is, they do not tackle the issue of what happens when a governmental entity simply decides to condemn party A’s property out of hostility toward party A’s family, for instance. Although Brinkmann ostensibly seeks to address this question, the Brinkmann majority relied heavily on Kelo to show that Kelo imposes no requirement that the “government’s stated objective” be “genuine” and free from “pretext for some other, illegitimate purpose.”⁸² Hence the importance of discussing Kelo at length before this Note could delve into an explanation of how the Brinkmann majority likely misinterpreted Kelo. This discussion will take place in Section II(C). Another crucial takeaway from Kelo resides in Justice Kennedy’s concurrence, specifically Justice Kennedy’s reference to the possibility of some unknown form of demanding scrutiny and when it should be invoked.⁸³

II. THE BRINKMANN CASE

The purpose of this Section is to examine some of the Brinkmann majority’s arguments in support of their decision to dismiss the Brinkmanns’ bad-faith takings claim. This Section demonstrates why the Brinkmann majority’s reasoning is, in many ways, flawed and therefore does not support its holding.

A. The Impossible Inquiry That Is (Actually) Possible

According to the Brinkmann majority, looking beyond the Town’s stated purpose behind a taking is an exercise “fraught with conceptual and practical difficulties.”⁸⁴ Such inquiry, holds the Brinkmann majority, is too demanding and would require courts to look into the “subjective motivation of every official who supported the [taking]”; this task is too demanding because motives are “rarely, if ever, pure.”⁸⁵ True, examining the intentions of every single official involved in the condemnation process would indeed be an exercise that is, at best, impracticable. Nonetheless, the logical assumption underpinning the Brinkmann rationale—namely, that scrutiny of every official’s underlying motive is necessary to determine the presence of bad faith—is, to put it mildly, a bit flawed.

But the Brinkmann majority took it a step further: government officials can be outright “hostile,” and the Brinkmann majority would still deem the taking valid as long as there is merely an asserted valid public use.⁸⁶ As openly admitted by the Town, even if the Town condemns homes of “disfavored minorities” purely “out of animus toward those minorities and a desire to drive them out of [Town],” this, too, would constitute a valid taking if the park excuse is presented to disguise that animosity.⁸⁷

By prioritizing judicial efficiency and simple-to-apply bright-line rules over ones that actually protect rights, the legal landscape in the wake of the Brinkmann decision is not merely grimly unfair; it verges on dystopian because bad faith slips through the cracks in the name of judicial efficiency.

Simple-to-apply, bright-line rules are not without their charms, however: they are easy to comprehend, produce consistent results, and are hard to misapply. But what happens when said consistency renders unfair outcomes? What happens when a condemnee has fistfuls of objective evidence that they have been wronged, but the court refuses to even consider any of it because doing so would apparently be too demanding an undertaking?

These simple-to-apply rules produce blatant injustices: as precedent, Brinkmann authorizes courts to deem a taking valid as long as there is any asserted public use, even if the condemnees could prove that the condemnation process was initiated and executed in bad faith.

Critically, none of these examples of conduct tackle the incentives or motives of any official. Instead, they come down to objective evidence. One need not delve into why the town officials enacted a moratorium over the protest of the county planning commission. One need not know why the town officials refused to send the county any evidentiary support concerning the supposed need for a moratorium. Similarly, one need not know the reason why the town never conducted an expensive market study that the condemnees had paid for, thereby expressly violating its own city code.⁸⁸ None of this evidence demands discernment of inscrutable motivations. This impossible inquiry is possible because it need not address the motivations of every official involved.

What is truly egregious in Brinkmann is the objective evidence provided. Hence why the Brinkmann majority had no difficulty in finding that the Town’s taking was pretextual.⁸⁹ The Brinkmann majority reached their conclusion via factual inquiry and managed to parse the evidentiary record. Other courts would similarly have no problem in conducting such inquiries on a routine basis.

B. The Brinkmann Majority’s Disregard of Their Own Precedent, Goldstein v. Pataki

If the plaintiff fails to provide sufficient evidence of a taking that is a pretext for private purpose or instead animus, dislike, or spite, courts can absolutely reject their claims and have done so in the past. But this ability to screen out plaintiffs who lack sufficient evidence is actually a good thing because it greatly streamlines the judicial process. No case better exemplifies this than Goldstein v. Pataki, a 2008 Second Circuit case that the Brinkmann majority, ironically, cites extensively.⁹⁰ Why ironically? Because Goldstein in no way supports the Brinkmann majority’s position.

Significance of Objective Evidence

The Goldstein plaintiffs claimed that “the [alleged] public uses were pretexts for a private taking” because Mr. Ratner, the owner of the New Jersey Nets and the Project’s primary developer, was the project’s “sole beneficiary,” while all the invoked public uses were mere “pretexts advanced by corrupt . . . state officials.”⁹¹ The plaintiffs did not prevail for various reasons—each of which would likely be sufficiently dispositive when taken individually.

The plaintiffs failed to provide objective evidence of the corruption they alleged, or of any bad faith for that matter. Thus, beyond “far-reaching allegation[s]” the plaintiffs had nothing to offer the court.⁹² The biggest error committed by the Goldstein plaintiffs was that they failed to allege “any specific examples of illegality . . . by which the Project was approved” or any “specific illustration of improper dealings between Mr. Ratner and . . . government officials.”⁹³ Noteworthy here, however, is the fact that the Goldstein court was open to hearing such evidence in the first place. And, unlike the Brinkmann majority, the Goldstein court would not have considered the process of evaluating said evidence to be “fraught with conceptual and practical difficulties.”⁹⁴ Instead, the Goldstein court actively sought such evidence. The Goldstein court wanted the plaintiffs to provide them with evidence of bad faith, so they could actually assess and analyze the bad faith that the plaintiffs alleged. Yet the plaintiffs provided the Goldstein court with essentially nothing beyond “mere suspicion[s].”⁹⁵ It is unsurprising, then, that the Goldstein court dismissed the plaintiffs’ claim.

Further, as emphasized by Judge Menashi, the dissenting judge in Brinkmann, the Goldstein court dismissed the plaintiffs’ claim “not because pretextual takings are permissible” but only because the allegations of pretext lacked specificity.⁹⁶ The Goldstein court’s concern was that a “reasonable juror” would simply not be able to conclude that the asserted laundry list of traditional public uses was mere pretext.⁹⁷ Now, contrast this with Brinkmann: The Brinkmann majority expressly admitted that the Brinkmanns’ “complaint . . . allege[d] facts sufficient to support a finding that the decision to create the park was a pretext.” Thus, evidence of pretext was definitely not lacking in Brinkmann.⁹⁸

Possibility of Closer Objective Scrutiny

The Goldstein court also stated that they wished to “preserv[e] the possibility that a fact pattern may one day arise in which the circumstances” would so align that “a closer objective scrutiny” would be “required” in the context of pretextual takings.⁹⁹ To justify this closer objective scrutiny, the so-called “circumstances of the [condemnation’s] approval process” would have to “greatly undermine the basic legitimacy of the outcome reached.”¹⁰⁰ Naturally, the Goldstein plaintiffs’ utter failure to provide facts supporting their allegations of bad faith, pretext, and illegality did not trigger that closer

objective scrutiny to which the Goldstein court alluded as a possibility in some pretextual takings cases.

The Goldstein fact pattern, however, is not present in all cases, and there are cases in which the plaintiffs can and do provide the court with ample evidence concerning pretext, thus triggering a closer objective scrutiny. Brinkmann presented precisely such a fact pattern. In Brinkmann, the “circumstances” surrounding the process of a passive park approval ranged from the Town’s alleged lawbreaking arising out of the Town’s refusal to conduct the $30,000 market study for which the Brinkmanns had paid to the allegedly baseless moratoriums. Such accusations must have, at a minimum, been supported by objective evidence that the Brinkmanns provided, as the Brinkmann majority even noted that the Brinkmanns’ complaint alleged “facts sufficient to support a finding that the [Town’s] decision to create the park was a pretext for defeating the Brinkmanns’ commercial use.”¹⁰¹

But returning to the Goldstein rule, here the “approval” consisted of the Town authorizing the condemnation of the Brinkmanns’ parcel. And as to the “outcome” reached: one could plausibly argue that a regulation-abiding family business was shut down, and the parcel was condemned simply so others could enjoy a park without any amenities. The rule that Goldstein sets out, calling for a closer objective scrutiny, can therefore be applied to the Brinkmann facts. On its face, Brinkmann checks off all three elements of the Goldstein rule: circumstances, approval, and outcome. Of course, counterarguments could be made here, such as (1) building a hardware store in this specific location might further “increas[e] traffic in an area that is already dangerous” and (2) residents of the Town of Southold have numerous “concerns” about this hardware store and do not want the Brinkmanns to build it.¹⁰² But all of these accusations and counterarguments would likely require closer objective scrutiny—as opposed to automatically blessing a bad-faith taking because the condemner asserted some public use.

Pretextual Taking: A Claim of Dubious Jurisprudential Pedigree?

One last aspect of Goldstein worth addressing is how the Brinkmann majority emphasized that, apparently, pursuant to Goldstein, “a pretext-based challenge to a taking has a ‘dubious jurisprudential pedigree.’ ”¹⁰³ This is largely taken out of context and is an inappropriate generalization. The Goldstein court said that the “particular kind of ‘pretext’ claim the plaintiffs [raised] in this case . . . bears an especially dubious jurisprudential pedigree.”¹⁰⁴ What has a dubious jurisprudential pedigree is the evidentiary underpinning of the Goldstein plaintiffs’ pretext claim, not all other pretext-based claims outside of the Goldstein realm; Mr. Ratner offered an extensive list of “well-established” public uses to counter the Goldstein plaintiffs’ claim.¹⁰⁵ Contrast Goldstein’s “creation of affordable housing units,” “mass-transit improvements,” and “redress of blight” with Brinkmann’s 1.7-acre empty park.¹⁰⁶ The difference is as starkly evident as it is profound, indicating that the Brinkmanns’ assertion of a pretextual taking was not of dubious jurisprudential pedigree.

C. The Possibly Fatal Mistake of Kelo Misinterpretation

Before this Note addresses the Brinkmann majority’s possible misinterpretation of Kelo—or at least, its failure to consider alternative interpretations and dispose of them appropriately—an important question should be addressed: Why does it matter how the Brinkmann majority interpreted Kelo? The answer is simple: the Kelo misinterpretation alone likely cost the Brinkmanns their property.

The Brinkmann majority helped themselves to generous portions of Kelo—or, more specifically, the following Kelo passage—which is the key in this analysis: “[T]he [C]ity would no doubt be forbidden from taking petitioners’ land for the purpose of conferring a private benefit on a particular private party . . . Nor would the [City] be allowed to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit.”¹⁰⁷

An Unwarranted Inference Drawn by the Kelo Majority

The Brinkmann majority confidently asserted that the “mere pretext of a public purpose” language is not an “overarching prohibition against any and all purposes alleged to be ‘illegitimate.’ ”¹⁰⁸ Per the Brinkmann majority, Kelo imposed no requirement that the “government’s stated objective . . . be genuine, and not a pretext for some other, illegitimate purpose,” unless that purpose concerns bestowal of private benefit.¹⁰⁹ The Brinkmann majority concluded that, under Kelo, “the only impermissible pretext is bestowing a private benefit.”¹¹⁰ So only when there is an alleged private purpose (e.g., private party A conferring a private benefit on B, another private party) does the Brinkmann majority actually care to delve into whether the government’s stated objective is genuine. Other kinds of pretext such as prevention of a legal land use (think a family-owned hardware store), spite, and discrimination are permissible under Brinkmann—as long as there is an asserted valid public use.¹¹¹

And in Brinkmann, bestowal of private benefit was not alleged, so the Brinkmanns were simply out of luck.¹¹² In Brinkmann, the issue was not that the government bestowed a private benefit upon some private party at the Brinkmanns’ expense. Nor was there some other permutation of the “private benefit” concern. Instead, at issue was a municipality taking private land for a pretextual public use (i.e., a passive use park)—not for purposes of giving the land to some other private party.

But here an interesting wrinkle emerges in the Brinkmann majority’s logic: when did Kelo say that the sole impermissible takings are those in which the government’s actual motive is to bestow a private benefit upon some private party? Similarly, when did Kelo say that takings driven by spite, discrimination, or animus are allowed and require no inquiry into both purpose and mechanics? These are trick questions because Kelo never said either, and yet the Brinkmann majority inferred that it did.

It would seem that the likely reason why Kelo’s “mere pretext of a public purpose” language is immediately followed by a bestowal of private benefit qualifier is because Kelo, as a case, focused exclusively on private use. At issue in Kelo was whether the city could seize private property from one private party in order to confer a benefit on another private party, all for the ostensible purpose of economic development. Accordingly, by what logic can the Brinkmann majority confidently decree which other pretextual takings are permissible or impermissible when the only issue before the Kelo court involved private use and nothing else? Or are we supposed to assume that because private benefit was the only kind of pretext mentioned by Kelo, this now suddenly means that all other kinds of pretext are excluded from this status of impermissibility, therefore making them permissible under all circumstances—even the most egregious?

Two Ways of Interpretation: Examining New England Estates LLC v. Town of Branford

The Brinkmann majority interpreted “mere pretext of a public purpose” as stating that the only impermissible takings are those in which there is a conveyance of private benefit.¹¹³ The same language, however, can also be interpreted thusly: takings that convey a private benefit, along with other forms of pretextual takings (e.g., those arising out of spite, discrimination, or unfair prohibition of running a regulation-abiding family business) are all impermissible. This Kelo language does not necessarily close all doors to other claims stemming from other forms of pretext, as claimed by the Brinkmann majority. One can just as well argue that Kelo merely provided a single, non-exclusive example of pretext (i.e., conveyance of private benefit) and the reason why this example pertained to conveyance of private benefit and not something else is because Kelo is a case that narrowly addresses the private benefit issue. But this act of providing a single example of pretext does not deny protection to all other kinds of pretextual takings. The “mere pretext of a public purpose” language does not delineate what is excluded from the so-called “pretext.” Nor does Kelo place any restrictions or limits upon potential plaintiffs raising other types of pretextual takings claims, such as those involving discrimination or spite.

This idea of varying interpretation of the Kelo language was also examined in New England Estates, LLC v. Town of Branford, a 2010 Connecticut Supreme Court decision which is in direct opposition to Brinkmann.¹¹⁴ Notably, the Second Circuit (where Brinkmann was decided) includes Connecticut in its footprint.¹¹⁵ In New England Estates, New England Estates wanted to build an affordable housing development near the landfill.¹¹⁶ The Town committee then abruptly decided that the town had an urgent need for playing fields precisely where the affordable housing development was to be built.¹¹⁷

Apart from the dire need to build a playing field, the town in New England Estates also decided to bolster its tenuous position via an alternative justification for the taking by citing environmental concerns surrounding the proposed development’s proximity to the landfill.¹¹⁸ And this justification would have probably worked had there been no evidence to the contrary: (1) an internal memorandum outlining which strategies had already been implemented by the town for the sole purpose of “protecting the town against affordable housing appeals” and (2) “internal communications” among town officials revealing just how much they did not want an affordable housing development.¹¹⁹

To justify its environmental concerns, the town relied on a one-page sketch of the playing fields and a five-page letter, which outlined “generic” concerns regarding building residential developments near landfills.¹²⁰ Beyond alluding to “possibilities” of such contamination, the letter said nothing substantive in regard to the specific landfill at issue.¹²¹ The incriminating internal communications, coupled with the town officials’ sudden environmental concerns at a time very convenient for them, followed swiftly by the exercise of eminent domain power to stop the affordable housing project, made it rather easy for the New England Estates court to properly halt the town’s bad faith actions.¹²²

The town argued that it did not violate the Takings Clause by being “dishonest” about its reasons for taking the land because the Takings Clause only prohibits takings for private use, not other kinds of pretextual takings.¹²³ If this argument sounds familiar, it is because this is precisely what the Brinkmann majority emphasized: the “[Brinkmanns’] complaint does not allege that the Town meant to confer [a] private benefit” and because an “unimproved” public park still constitutes public use, this makes the condemnation valid.¹²⁴ Unlike the Brinkmann majority, however, which praised this reasoning, the New England Estates court rejected the town’s assertion that takings become violations solely when the government seizes private property for a private use.¹²⁵ This assertion made by the town in New England Estates is identical to that of the Brinkmann majority¹²⁶ and also has its roots in a possible misinterpretation of Kelo, as examined in this Section.

The New England Estates court emphasized that the town’s reliance on Kelo “for the proposition that only a taking for the purpose of conferring a benefit on a private party constitutes a violation of the [Takings Clause]” is incorrect.¹²⁷ Such a reading of Kelo’s “mere pretext of a public purpose” language interprets the Takings Clause in an unjustifiably “overbroad[]” manner.¹²⁸ That is, it takes Kelo’s prohibition against bestowals of private benefits and extends it to say that the sole impermissible takings are those in which there is a bestowal of private benefit. Further, because the “issue of whether a bad-faith taking would violate the [Takings Clause]” was never before the Kelo court to begin with,¹²⁹ the inference that bad-faith takings should go unchecked cannot be made. Thus, the Connecticut Supreme Court would disagree with the Brinkmann majority concerning the interpretation of the pretext language in Kelo.

It is the current reality of the takings landscape that whether a Connecticut resident loses or prevails on their pretextual taking claim now largely depends on choice of venue.¹³⁰ In Connecticut state court, someone with a Brinkmann-esque fact pattern would likely prevail on the merits.¹³¹ Yet that same hypothetical person marching into federal court would summarily lose for lack of an alleged bestowal of private benefit.¹³²

III. THE NINTH & SEVENTH CIRCUITS

This Section examines the reasoning of the Ninth and Seventh Circuits in cases that resemble Brinkmann and tackle bad-faith takings analysis. Both circuits, to varying degrees, stand in contrast to the Brinkmann majority which conducted no such analysis.

A. Analysis of the Ninth Circuit

In the 1966 Ninth Circuit decision, Southern Pacific Land Company v. United States, the Ninth Circuit stated that when administrative agencies engage in takings for an “authorized public purpose,” such takings are “not subject to judicial review,” with one crucial exception.¹³³ Takings for an authorized public purpose can be subject to judicial review if the administrative agency’s decision to condemn a property is “alleged to be arbitrary, capricious, or in bad faith.”¹³⁴ While easy enough to allege, this standard is deferential to administrative agencies, resulting in a low likelihood of success for plaintiffs. In fact, the Ninth Circuit even stressed how unlikely it is for plaintiffs in such cases to succeed: “in each instance in which a lower court set aside a federal agency’s determination that it was necessary to take [a] particular property . . . the lower court’s ruling was reversed on appeal.”¹³⁵ The principle nevertheless stands: there are instances when the Ninth Circuit will examine alleged bad faith in takings claims, even though these allegedly bad-faith takings all bear expressly stated ostensible public uses.

A natural inquiry in this line of analysis is to examine what is required to clear the Ninth Circuit’s high bar for challenging administrative agencies’ “arbitrary” takings. The Ninth Circuit instead provides multiple examples of how not to satisfy it, which all come down to the quality of bad faith evidence. If the evidence of bad faith is insubstantial or nonexistent—especially coupled with very big, almost scandalous, but largely unsupported assertions—the Ninth Circuit will not invalidate the administrative agency’s taking.

In Southern Pacific, the Southern Pacific Land Company (“SPLC”) owned 4,600 acres of land, including the mineral rights.¹³⁶ The U.S. Government wanted to condemn the land and the mineral rights for purposes of constructing a naval air station.¹³⁷ SPLC thought it advantageous to essentially imply that the U.S. Government decided to profit off SPLC’s land and engage in an “outside land speculation.”¹³⁸ When deposed, the Assistant Secretary of the Navy testified to the exact opposite of this assertion, stating that mineral extraction was actually “inconsistent with the establishment of the naval air station, and was not [even] contemplated when the declaration of taking was filed.”¹³⁹ In fact, the primary reason for condemnation was so that the land and the associated mineral rights would be utilized to produce oil only “in the case of emergency.”¹⁴⁰ And just like that, with absolutely no evidence to refute any of the U.S. Government’s aforementioned points, the plaintiffs did not prevail on their bad-faith taking claim.¹⁴¹

A subsequent 1968 Ninth Circuit decision, Scott Lumber Company v. United States, is largely identical to Southern Pacific’s reasoning and, unfortunately, its outcome too.¹⁴² Here, the United States (on behalf of the United States Forest Service) sought to condemn appellant’s estate in timber land “for the construction, maintenance and permanent use of highways . . . and for the use, conservation and protection . . . of [the] forests [on appellant’s land].”¹⁴³ Similar to SPLC in Southern Pacific, the Scott Lumber appellant claimed that the “taking was not for a public purpose” but instead for the “purpose of benefitting certain competitors of appellant pursuant to an illegal agreement.”¹⁴⁴ As in Southern Pacific, the assertion was as unsupported as it was bold.¹⁴⁵ Moreover, the deposition of the Acting Secretary of the Department of Agriculture also revealed nothing suspicious.¹⁴⁶ Accordingly, the Scott Lumber court ruled that it was “completely satisfied” that the government’s taking was for public use—given that the “facts alleged by [the appellant], [even] taken in the light most favorable to [the appellant]” still did not “show that the action of the officials ha[d] such an arbitrary, capricious or bad faith quality as to justify [judicial] interference.”¹⁴⁷ Crucially, however, the Scott Lumber court did contemplate judicial interference and was even willing to possibly invalidate a bad-faith taking had the appellant actually produced sufficient evidence of bad faith, beyond claims that were as baseless as they were audacious.¹⁴⁸

The Scott Lumber court even agreed with the lower court’s declaration that “[t]his Court need not, and will not, stand idly by and allow administrative officials to take private property arbitrarily, capriciously, [or] in bad faith,” something that cannot be said about the Brinkmann majority.¹⁴⁹ If anything, this “idle” manner is emblematic of Brinkmann’s reasoning: even when there is blatant evidence of bad faith coupled with some suspect public use, the Brinkmann majority would decline to look into any “alleged pretexts and motives.”¹⁵⁰ The Scott Lumber court was not only eager to conduct itself in a non-idle manner but also examined the facts in the light most favorable to the appellant. Yet, even with the Scott Lumber court largely cheering the appellant on and giving the appellant all the necessary tools to prevail, the appellant simply failed to provide evidence of bad faith.

Would a similar evidentiary framework, as employed by the Southern Pacific and Scott Lumber courts (specifically in the context of arbitrary takings by administrative agencies) make sense in the Takings Clause context? This is a ready-to-go framework that can be easily applied beyond cases where administrative agencies (such as Scott Lumber’s United States Forest Service) are accused of engaging in bad-faith takings.

Although it offers a potential solution, this framework has its pitfalls. One, it is similar to rational basis review, so much so that it even uses rational basis review’s “arbitrary” language. Such language is called for in rational basis review only because higher levels of scrutiny require something more than the regulatory action not being arbitrary. At the end of the day, it is a pretty low bar, offering little protection for condemnees’ interests; any legitimate interest (e.g., a passive use park) would suffice. Two, it is hard to define just what constitutes “good” evidence in a manner sufficient to demonstrate bad faith. And three, even if condemnees provide satisfactory evidence, the government can simply argue the following:

That only one or two members of the agency (or a municipality like in Brinkmann) had bad-faith intent in condemning the land (while the rest did not);
That it is not the province of the judicial system to disrupt a democratic process; and
That it is not bad faith but mere incidental disparate impact that was not actually intended.

B. The Seventh Circuit & Question of Legislative Deference

The Seventh Circuit takes a similar approach to the Ninth Circuit: although some deference may be given to administrative agencies, evidence of arbitrariness and bad faith matters when a court evaluates whether an administrative agency’s taking was indeed for a public use. That is, the Seventh Circuit holds that there is no valid or legitimate public use if such public use stems from bad faith or pretext. So even if there is an alleged unimpeachable public use (such as a public park), the administrative agency’s taking is declared invalid if the plaintiff can prove bad faith or pretext associated with said public use.¹⁵¹ This is a stronger iteration of what the Ninth Circuit decided in Scott Lumber and Southern Pacific. The Ninth Circuit provided the condemnees with an opportunity to present evidence that could, in theory, demonstrate bad faith or arbitrariness by the administrative agency. But again, realistically, because the evidentiary bar is high and administrative agencies are (automatically) given much deference, such efforts will likely fail. The Seventh Circuit, on the other hand, made “public use” determinations conditional on there being no bad faith and reserved the judicial right to dig deeper to see if legislative deference is warranted.

In United States v. 58.16 Acres of Land—a 1971 Seventh Circuit decision—a husband and wife owned a 58.16-acre tract which primarily contained farmland on which the landowners’ home stood.¹⁵² The United States wanted to take this farmland for purposes of flood control and reduction of flood crests.¹⁵³ The landowners then argued that the United States’ action was “arbitrary, discriminatory, capricious, vindicative, and in bad faith,” thus warranting a “valid defense to the condemnation proceeding.”¹⁵⁴ Or, in short, landowners contended that the asserted public use (to prevent flood control and reduce flood crests) was a pretext. To prove this, they cited their repeated complaints to the government regarding erosion and the government’s “failure to maintain proper water levels” from 1968 through 1970.¹⁵⁵ The landowners went on to stress that “no [government] action had [ever] been taken to repair the damage or to prevent further erosion.”¹⁵⁶ After three years of refusing to fix the issue and not responding to any of the landowners’ complaints, the government responded to the complaints in 1971, informing the landowners that condemning their property would be much cheaper than protecting it from erosion or floods.¹⁵⁷

It was unclear to the Seventh Circuit why the district court judge denied without merit the motion to vacate the order for possession.¹⁵⁸ The Seventh Circuit surmised that perhaps the reason the motion had been denied without merit (i.e., the motion was basically deemed frivolous) was that the district judge found against the landowners’ bad faith claim.¹⁵⁹ Or, as the Seventh Circuit further posited, perhaps the district court ruled that way because the court thought that the administrative decision to condemn the land “was [simply] not judicially reviewable”—given that there was an alleged public use, regardless of the substantial pretext evidence.¹⁶⁰

The Brinkmann majority also greatly relied on a “longstanding policy of deference to legislative judgments” to rationalize inaction.¹⁶¹ Brinkmann is actually far from being the only court that emphasizes legislative deference in the takings context; it is neither a novel argument nor dispositive. For instance, even in 58.16 Acres of Land, the Seventh Circuit emphasized that “once the question of the public purpose has been decided, the amount and character of land to be taken . . . rests in the discretion of the legislative branch.”¹⁶² But the Seventh Circuit does not use this discretion to justify its own inertia. To the contrary, while the Seventh Circuit acknowledges and even embraces legislative deference, it nevertheless considers it proper for the judicial branch to “materially . . . aid[]” public use analysis “by exploring the good faith and rationality of the governmental body in exercising its power of eminent domain.”¹⁶³ Therefore, the two—that is, a substantive bad-faith takings analysis and deference to the legislative branch—are not mutually exclusive. According to the Seventh Circuit, the “determination of the extent, amount or title of property to be taken . . . rests wholly in legislative discretion,” assuming there is (1) an “absence of bad faith” and (2) the “determination” to condemn was “made in good faith.”¹⁶⁴ These “restraints” that the Seventh Circuit cleverly placed serve as evidence of how bad-faith takings analysis can peacefully co-exist with legislative deference.¹⁶⁵

The main takeaway here is that the Seventh Circuit emphasized that the district court was “required to resolve . . . questions” of “bad faith, arbitrariness, and capriciousness,” all of which bore upon the “determination of public use.”¹⁶⁶ The Seventh Circuit is firm that there is no valid public use without an absence of bad faith and a presence of “good faith and rationality of the governmental body in exercising its power of eminent domain,”¹⁶⁷ and this assertion runs directly counter to the Brinkmann majority.

While the Ninth Circuit was, in theory, willing to look at evidence of bad faith, which would potentially invalidate the taking, the Seventh Circuit made a pronouncement with which the Brinkmann majority would certainly disagree. Specifically, if there is strong evidence of bad faith or arbitrariness (and the Brinkmann majority acknowledged that there had been), there can be no legitimate public use, making the taking invalid. Unlike the Seventh Circuit, the Ninth Circuit does not make a valid public use expressly dependent upon a lack of bad faith. Regardless, both circuits prioritize and actively consider evidence of bad faith, so they can draw an inference of a taking’s validity.

IV. WHAT NOW?

The purpose of Part IV is to examine the Brinkmann fallout, while remaining solution-oriented with an eye toward the future. This Note examines which standard of review could be used to evaluate bad-faith takings on a federal level, focusing on the tripartite burden-shifting framework and also discussing the downsides of the Equal Protection Clause and the doctrine of unconstitutional animus in the context of bad-faith takings. This Section continues to imagine what could be, with the intention to move forward jurisprudentially from Brinkmann to a more fair, uniform, and dignified approach to bad-faith takings.

A. The Dangers of Rational Basis Review

In the context of bad-faith takings, there is a conflict between rational basis review and the various forms of heightened review. While there exist various permutations of what heightened review can and should look like—and of course, much disagreement too—this Note will only closely examine the tripartite burden-shifting framework. But first, rational basis review.

One cannot talk about rational basis review in the context of property law without, yet again, mentioning Kelo. The Kelo majority “declared that a taking should be upheld as consistent with the Public Use Clause,” just as long as it is “ ‘rationally related to a conceivable public purpose.’ ”¹⁶⁸ This “deferential standard of review echoes the rational-basis test.”¹⁶⁹ And rational basis review is extremely deferential to the legislative process—so much so that a “challenged law will be upheld if it could be rationally interpreted as advancing any conceivable legitimate public purpose.”¹⁷⁰ In fact, “even the ‘flimsiest’ of reasons will survive [said] scrutiny.”¹⁷¹ Courts are known to grant this legislative deference “even if there is nothing other than judicial speculation” to imply that the government was trying to advance a public purpose when enacting the law.¹⁷² This is precisely what happened in Kelo.

Under Kelo, a mere prediction (or judicial speculation) that some public use will generate some secondary public benefit is enough.¹⁷³ Even the Kelo majority itself, likely sensing a risk for the potential abuse of eminent domain under rational review, suggested that states can and should place “further restrictions” upon the takings power.¹⁷⁴ A large concern with this standard is that the embedded presumption of permissibility within the rational basis of review may “motivate[] trial judges to see no evil, hear no evil, and speak no evil” even in takings cases which “fail the smell test”¹⁷⁵—chief among them the Brinkmann case.

In the takings context, rational basis review can invalidate two types of condemnations: (1) when the “asserted purpose is not a cognizable public purpose” and (2) when there is a “clear intention to benefit a private party.”¹⁷⁶ Takings driven by bad faith (such as discrimination or arbitrarily forbidding a property owner from running a regulation-abiding family business) do not fall into either category. Why? Because an asserted public purpose such as a park is a cognizable public purpose, and discrimination would likely not involve a conveyance of private benefit upon a private party. This is why Justice Kennedy’s concurrence in Kelo suggested that “a more stringent standard of review” might be suitable for a “more narrowly drawn category of takings,” though largely referring to takings marked with “impermissible favoritism.”¹⁷⁷

To clarify, favoritism alludes to the governmental entity’s inherent reason “for favoring a certain party”; these reasons range from corruption to “a complex web of social and business relations.”¹⁷⁸ One could arguably view favoritism as a particular form or sub-category of bad-faith taking, one that punishes a property owner to benefit someone else. Favoritism is prohibited “out of concerns for basic fairness.”¹⁷⁹ The same exact logic, however, applies to takings which are marked by other kinds of bad faith, manifested in things like discrimination, racism, or animosity toward specific individuals—this, too, violates our inherent sense of fairness. Although Justice Kennedy’s concurrence speaks to issues of favoritism in the takings context, the reasoning outlined in the concurrence can be extrapolated further to other kinds of bad faith.

Justice Kennedy made reference to a more heightened standard of review, but he did not actually delve into the logistics of this more “stringent” standard.¹⁸⁰ For instance, it remains unclear as to which situations warrant a “meaningful rational-basis review that in [Justice Kennedy’s] view is [always] required under the Public Use Clause” versus those meriting a “demanding level of scrutiny” which in some cases even justifies a “rebuttable” “presumption of [a taking’s] invalidity” if the “risk of undetected impermissible favoritism of private parties is [] acute.”¹⁸¹ Would Justice Kennedy’s “demanding level of scrutiny” be akin to strict scrutiny? Rational basis plus? Justice Kennedy’s Kelo concurrence is vague on these questions. Justice Kennedy also failed to identify what evidence would trigger these standards or what exactly the court is supposed to do with said evidence of favoritism,¹⁸² an omission for which he received much criticism.¹⁸³

This Note disagrees with the assertion that Justice Kennedy exclusively referred to “rational basis plus” review.¹⁸⁴ Justice Kennedy referred to multiple standards. And yes, while Justice Kennedy’s Kelo concurrence creates much unnecessary confusion, that is the nature of the contemplated standards. Thus, the extra layer of complexity should not be swept under the rug. In fact, certain scholars even argue that the criteria¹⁸⁵ Justice Kennedy considers (which supposedly triggers some form of heightened scrutiny) directly “collid[e]” with the Kelo majority’s assertion that there should be no “intrusive scrutiny”¹⁸⁶—suggesting that Justice Kennedy indeed took it a step further than rational-basis-plus review. Accordingly, this Note posits that in addition to rational-basis-plus review, Justice Kennedy was also hinting at something even more demanding.

Furthermore, although not a focus of this Note, prudence demands a discussion, albeit brief, of rational-basis-plus review. Although Justice O’Connor characterizes it as a “more searching form of rational basis review,”¹⁸⁷ the Supreme Court “has never acknowledged its existence” and Justice Scalia downright denied it.¹⁸⁸ Previous inquiries into this doctrine (such as the “justification” of its presence or the “underlying theory”) were “the equivalent of a constitutional snipe hunt, and about as productive.”¹⁸⁹ Overall, there certainly exists the notion that the doctrine is “suspicious” and “problematic,” given that it “lack[s] an articulated basis in principle” and “is impossible to either apply or constrain in a principled way.”¹⁹⁰ Also, on a more practical level, it is often difficult to identify which level of scrutiny the court actually applied (i.e., rational basis versus rational-basis-plus) and most of the time this distinction is rooted in mere speculation.

Contrast the rational-basis-plus review doctrine with the burden-shifting evidentiary framework first put forth in McDonnell Douglas Corp. v. Green, a 1973 Supreme Court case.¹⁹¹ This framework has frequently been used to analyze claims of discriminatory treatment such as discrimination claims under the Americans with Disabilities Act and Title IX gender discrimination claims.¹⁹²

Thus, this Note will next explore the McDonnell Douglas burden-shifting evidentiary framework for purposes of steering bad-faith takings analysis in a more uniform and fair direction.

B. Heightened Review: The Tripartite Burden-Shifting Standard

In the context of takings, this standard was originally proposed by Daniel Kelly to examine takings which are rooted in favoritism only.¹⁹³ The goal of this Note is to see how this framework would operate in the context of takings driven by discrimination and bias.

Direct Versus Indirect Evidence

In part one of the analysis, an allegedly wronged employee can either produce direct or indirect evidence of discrimination.¹⁹⁴ Similarly, a condemnee would be required to demonstrate that a taking is tainted with favoritism via either producing direct or indirect evidence.¹⁹⁵ Direct evidence could essentially act as a “smoking gun.”¹⁹⁶ And in the context of favoritism, for example, direct evidence could be satisfied by an email exchange between some private developer and a municipal official in which it is clear that the “actual purpose of the taking [was] to benefit the [private] developer.”¹⁹⁷ This is a high burden to satisfy, so the indirect evidence would be more practical. The condemnee (again, in the favoritism context) would need to prove two elements: (1) that the “project involves a private party” and (2) said private party “might obtain a distinct benefit” (given that “favoritism is only possible in a project in which a private party expects to obtain an advantage”).¹⁹⁸

In the context of other kinds of bad faith, the analysis would look something like this: If the condemnee who (allegedly) was on the receiving end of bad faith decides to take the direct evidence route, they would be required to demonstrate some form of smoking gun. For example, a documented exchange in which municipal officials exhibit disdain for the condemnee—whether it be discrimination, racism, homophobia, or something else. There are a few issues with the direct evidence route, however. For instance, how likely is it that a condemnee will obtain records of these discriminatory written exchanges from multiple municipal officials, and not just one? If the animosity toward the condemnee stems from just one municipal official, should this suffice as conclusive evidence of bad faith? For instance, other municipal officials on the same board may have voted for condemnation under a genuine belief that condemnation would promote an actual public interest. Another issue with direct evidence is that most conduct is simply not marked with blunt evidence of discrimination. Further, municipal officials can easily argue that something they said was taken out of context—which may raise evidentiary issues—or was misinterpreted. So, it is therefore unlikely that a condemnee would easily satisfy the direct evidence threshold.

As to indirect evidence, Brinkmann supplies a great example. In a nutshell, the Brinkmanns could argue that the Town of Southold engaged in multiple machinations to prevent construction of the Brinkmanns’ hardware store (allegedly ranging from pressuring the bank to breach its contract with the Brinkmanns¹⁹⁹ to inventing moratoriums).²⁰⁰ So what kind of evidence would the Brinkmanns need to show to satisfy this indirect evidence standard and establish a prima facie case of bad faith, thus satisfying the first element of the tripartite burden-shifting framework and thereby shifting the burden onto the Town to prove that the taking was not driven by bad faith? Largely mirroring the requirements of a Title VII claim, the Brinkmanns would be required to show that:²⁰¹

Either
- They are members of a protected group (think religion, race, pregnancy, sex, gender, sexual orientation, national origin, etc.) or
- Their fundamental right was infringed upon (although the right to own and use property has not been deemed a fundamental right, certain scholars have argued that such rights “need to be protected with nothing less than the judiciary’s strictest level of scrutiny.”²⁰² This is certainly an

expansion of the framework, but an argument worth considering)

(2) That they have applied and complied with all requirements in their permit application;

(3) That, although the Brinkmanns complied with all regulatory requirements,

The Brinkmanns’ permit application was rejected and
The municipality decided to seize the Brinkmanns’ land via eminent domain; and

(4) That, after the rejection,

The municipality continued to grant permit applications to similarly situated individuals and
Did not seize property of similarly situated individuals (such as adjacent lots with virtually identical characteristics, for instance).

If the Brinkmanns successfully demonstrate indirect evidence, then the burden would shift to the governmental entity to articulate some “legitimate, nondiscriminatory” reason for the permit’s rejection and subsequent taking.²⁰³

Beyond a Merely Cognizable Reason for Condemnation

As to the second element of the test, the burden would then be on the municipality to articulate a legitimate, non-bad faith driven reason as to why it rejected the Brinkmanns’ numerous permit applications and decided to take their land.²⁰⁴ In analyzing favoritism-motivated takings, Kelly emphasizes that a condemner’s mere articulation of some cognizable public purpose (such as “preserving open space” or “generating new jobs”) would be insufficient to satisfy this element.²⁰⁵ A condemner would instead be required to show why a specific kind of private involvement is required for the project to take place.²⁰⁶ For instance, perhaps said private party possesses some crucial information or expertise that other similarly situated experts do not.²⁰⁷

The Town of Southold would satisfy this element by showing that their reason for rejecting the Brinkmanns’ permit and taking their land was not driven by bad faith. What would be that “reasonable basis” for taking the Brinkmanns’ land?²⁰⁸ This could be a wide array of things. Perhaps the Brinkmanns’ business was not compliant with regulations, or their proposed business constituted a hazard, a nuisance, or a danger to others, compelling the municipality to act to protect the safety of its residents. But such claims would require actual empirical evidence (e.g., studies done by civil engineers who hold proper qualifications) suggesting that the construction of a hardware store in that specific location would lead to a significant increase in traffic and thus present a real danger to residents. Further, these experts should be subject to cross-examination.

Elevated Risk of Pretext/Bad Faith

If the condemner (in this case, a municipality) meets the burden outlined in the previous element, the “presumption” of intentional bad faith would disappear.²⁰⁹ The condemnee can nevertheless prove “disparate treatment” by showing that a condemner’s explanation is pretextual.²¹⁰ In the context of favorability, a condemnee would satisfy this element by demonstrating a heightened risk of impermissible favoritism.²¹¹ For instance, a condemnee could show that a municipality was “capable of selecting a private party through a competitive process but decide[d] not to do so.”²¹²

By analogy, for purposes of demonstrating a heightened risk of pretext, the Brinkmanns could demonstrate any of the following (this list is non-exhaustive):

(1) An overwhelming majority of Town residents did not want a passive use park²¹³ or actively advocated for the Brinkmanns’ hardware store;

(2) The Town had not considered any other alternatives before condemning Brinkmanns’ land and ignored the empty adjacent lot;²¹⁴

(3) The Town decided to condemn the Brinkmanns’ land only after the Brinkmanns announced their plans to build a regulation-abiding, family-owned hardware store;²¹⁵

(4) The Town became interested in acquiring the Brinkmanns’ empty lot only after the court allowed the Brinkmanns to proceed with their claim against the Town’s moratorium;²¹⁶

(5) The Town never hired any professionals to evaluate whether the Brinkmanns’ property was suitable for a park;²¹⁷

(6) The “projected . . . benefits” of a passive use park were and remain de minimis and “trivial.”²¹⁸

Now, the Town could argue that because a park is an established public use, it was allowed to take the Brinkmanns’ land, given that there is a presumptive benefit to the public.²¹⁹ This line of argumentation should not be allowed (just as it is not allowed in the second element of this test) because that would make this test regress back into rational basis review. Furthermore, because this test largely centers around the risk of ill motive, the condemnees (like the Brinkmanns) should not be required to establish actual ill motive. All they would be required to show is an elevated or substantial risk of bad faith conduct. So for purposes of this last element, it should be sufficient for the Brinkmanns to demonstrate that there is a heightened risk that the municipality’s taking is not justified; this can be achieved via a showing of 1-6, or some robust combination thereof.

C. So What About the Equal Protection Clause?

The Brinkmann majority cited the Equal Protection Clause as an example of a hypothetical potential avenue available to those afflicted by governmental takings instead of the Takings Clause.²²⁰ But the Equal Protection Clause is a trap because it largely falters at the level of rational basis review, despite the existence of two other standards for Equal Protection Clause analysis (intermediate scrutiny and strict scrutiny). Under rational basis review, most condemnees will simply never meet the burden of proving that there is an absence of any legitimate municipal interest in condemnation. A cheap park or an empty playing field will satisfy that legitimate municipal interest just fine, or so rational basis review will typically find.

The Three-Tier Framework

The Equal Protection Clause of the Fourteenth Amendment states that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”²²¹ When someone wants to argue that their equal protection rights were violated (in the context of challenging eminent domain takings), they are required to initiate suit under 42 U.S.C. § 1983.²²² To prevail on a § 1983 claim, the condemnee must successfully demonstrate two elements: (1) that their federal right was violated (that is, their right to “equal protection under the law as guaranteed by the Fourteenth Amendment”) and (2) the defendant “who violated [their] right did so under the color of state law.”²²³ The defendant who is alleged to have violated the condemnee’s equal protection rights can be a person or entity “who effectuated the condemnation proceeding.”²²⁴ Thus, “local governing bodies” and “local officials” can be sued under § 1983 when their alleged unconstitutional action essentially violated the condemnee’s equal protection rights.²²⁵

Equal protection jurisprudence is analyzed under three tiers: strict scrutiny, intermediate scrutiny, and rational basis scrutiny.²²⁶ Rational basis review is the “default standard” and is the “lowest level of judicial scrutiny.”²²⁷ Under rational basis review, the burden would be on the condemnee to show the absence of any legitimate municipal interest served by the condemnation.²²⁸ An overwhelming majority of equal protection cases are assessed under this very deferential standard.²²⁹ This means that plaintiffs overwhelmingly lose under rational basis review.²³⁰ In fact, the “number of rational basis cases in which plaintiffs have prevailed is so small that these cases have become an object of study in and of themselves.”²³¹ For example, between 1971 and 1996, the Supreme Court “considered one hundred ten rational basis equal protection cases” and “of these cases the plaintiffs won only ten times,” rendering a nine percent success rate.²³² The Brinkmanns, for instance, would never prevail under this standard: A park is a recognized public use and even a park that is devoid of any facilities could rationally be said to benefit Town residents. The Town residents could still hold picnics there or let their kids run around. So, under rational basis review, the Town would be viewed as having had some conceivable or possible interest in condemning the Brinkmanns’ land.²³³

As to strict scrutiny, courts may depart from rational basis review in two instances: (1) when there is either a suspect or quasi-suspect classification or (2) a fundamental right at issue.²³⁴ These two are jurisprudential rabbit holes and thus beyond the scope of this Note, but the following are deemed examples of suspect classifications (thereby triggering strict scrutiny): race and national origin.²³⁵ Age, disability, and economic disadvantage—among many others—do not qualify as suspect classifications and would only be subject to rational basis review.²³⁶ In the takings context, the “suspicion” comes from the very fact that a government or municipality may have relied on one of these classifications when making the condemnation decision (in the takings context).²³⁷ Such reliance would indicate “prejudice or antipathy toward the named group rather than a basis for sound [decision].”²³⁸

A fundamental right, on the other hand, has a much more confusing roadmap, or lack thereof: despite the fact that strict scrutiny “presupposes” so-called fundamental rights, the strict scrutiny formula gives absolutely “no guidance concerning how the identification [of rights violations] should occur.”²³⁹ Some of the recognized fundamental rights are the right to vote,²⁴⁰ the right to have children,²⁴¹ and the right to travel interstate.²⁴²

Categories of suspect class and fundamental right are now considered to be “seemingly closed,” making strict scrutiny, therefore, “virtually inaccessible” unless there is an already recognized suspect classification or a fundamental right at play.²⁴³ The Supreme Court has not “conferred suspect status on any [new] group since the 1970s,” even for “groups widely acknowledged to have suffered invidious treatment.”²⁴⁴

And the Brinkmanns, along with most other condemnees, would most likely not even make it to strict scrutiny analysis under the Equal Protection Clause in the first place. For instance, in Brinkmann, there was no alleged or potential suspect classification. And a property right is not a fundamental right in the eyes of substantive due process.

If a governmental action imposes a facially neutral classification (i.e., the law does not, on its face, single anyone out in particular, thereby implicating no suspect classification), condemnees could still argue that:

(1) The governmental action has a disparate impact (i.e., disadvantages a certain group of people) AND

(2) The governmental action was taken purposefully to harm this particular group of people (e.g., on the basis of race).

Although this would be an alternate pathway to strict scrutiny, most condemnees’ claims will likely fail prong #2’s discriminatory intent test and be given the short shrift of rational basis review instead.²⁴⁵ To demonstrate prong #2, condemnees (such as the Brinkmanns) would need to prove that a decision to condemn was because the government wanted to harm a certain group of people, not “in spite of” their decision to condemn having a disparate effect on a certain group of people.²⁴⁶ That is, the Brinkmanns would need to prove that the Town initiated this bad faith condemnation action precisely because of the Town’s intent to cause “adverse effects” upon the Brinkmanns as members of an “identifiable group” (assuming that the Brinkmanns had been members of an identifiable group).²⁴⁷ Proving such discriminatory intent is widely acknowledged as being “exceptionally difficult” to do,²⁴⁸ and this is another reason why most claims are subject only to rational basis review.

Doctrine of Unconstitutional Animus

This Note also acknowledges the doctrine of unconstitutional animus, which is based largely on the Equal Protection Clause.²⁴⁹ At first glance, it presents an attractive solution: If a municipality’s condemnation is motivated by animus, why can’t the court just strike it down? Why is the Takings Clause even necessary? But unconstitutional animus has some glaring problems.

Unconstitutional animus is basically a loophole that allows an equal protection claimant to possibly prevail under rational basis review.²⁵⁰ While that would be good news for the Brinkmanns, the bad news is that it is, at best, unclear what constitutes forbidden animus.²⁵¹ A law (or a decision to condemn, for instance) is animus-based if it is “based on nothing more than bias, hatred, or dislike.”²⁵² The Supreme Court has defined animus as “a bare . . . desire to harm” a person, which is a high burden to meet.²⁵³ For one, what if a condemnation is based on both animus and some animus-free “public-regarding objective”?²⁵⁴ For instance, in Brinkmann, both the Town residents and even the dissenting judge (pursuant to the Brinkmann majority’s snarky suggestion) could come to the park, “breathe its air” and

“spread [a] picnic.”²⁵⁵ A public park is, by definition, for the public to enjoy, and would thus constitute a public-regarding objective.

The definition of “animus” poses further issues. To illustrate, neither “religious belief[s]” nor “personal morality” are necessarily equated with animus.²⁵⁶ Take the 2015 Supreme Court decision, Obergefell v. Hodges, for instance.²⁵⁷ Although the Obergefell Court held that prohibiting same-sex couples from marrying violated both the Equal Protection Clause and substantive due process, the Court also noted that it declines to “disparage” those who “deem same-sex marriage to be wrong . . . based on decent and honorable religious or philosophical premises.”²⁵⁸ So when is it a decent and honorable religious belief and when is it animus-based homophobia?²⁵⁹ How does the court draw a consistent or predictable line between prejudice and a decent and honorable personal belief? This absence of a framework on how to arrive at a decision that something indeed constitutes animus is the reason that lower courts have been “wary of relying on animus” in the first place.²⁶⁰

Further, this doctrine necessitates an inquiry into subjective motivations of those officials who decided to condemn property. This takes us back to one of the Brinkmann majority’s concerns: that motivational inquiry is an “exercise as fraught with conceptual and practical difficulties.”²⁶¹ And the Brinkmann majority, in the context of unconstitutional animus, would not be wrong because the unconstitutional animus doctrine has been criticized as “analytically empty, a conclusion clothed in argument.”²⁶² The unconstitutional animus doctrine largely sits on a famously shaky foundation of just four cases (the so-called “animus quadrilogy”).²⁶³ Some scholars even argue that three of these cases “could and should have relied instead on [the traditional] equal protection doctrine for suspect and quasi-suspect classifications,” thereby expanding the suspect and quasi-suspect classifications.²⁶⁴ The unconstitutional animus doctrine is simply not as robust as the Takings Clause or the three tiers of scrutiny under the Equal Protection Clause. In contrast to the doctrine of unconstitutional animus, various bad-faith takings frameworks (all directly arising from the interpretation of the “public use” language in the Takings Clause) were already employed by the Ninth Circuit in Southern Pacific and Scott Lumber, the Seventh Circuit in 58.16 Acres of Land, and even the Connecticut Supreme Court in New England Estates. Although future jurisprudential analysis may well be able to rely on a vigorous animus framework, the current lack of such a framework, along with its high bar for success, makes animus analysis a suboptimal solution.²⁶⁵

D. Brinkmann Implications

At its core, Brinkmann is more than just bad law. It is actually dangerous because it incentivizes governmental entities to lie when condemning someone’s land, which in turn denies basic accountability to the public. Under Brinkmann, any bad-faith taking can receive judicial blessing if the government or a municipality simply utters words like “passive use park” or “playing field.” Discrimination can be sanitized in this manner. Likewise, racism and outright hostility. In Brinkmann, the Town stated at oral argument that, under the Brinkmann majority’s interpretation of public use, it would be perfectly acceptable for the Town to “seize the homes of disfavored minorities out of animus toward those minorities and a desire to drive them out,” just so long as the Town “said it would build parks where the minorities’ homes once stood.”²⁶⁶ Frighteningly, the Town’s analysis is not incorrect under the Brinkmann rule. Even scarier is that this is now the law in the Second Circuit, and this is what the Second Circuit has authorized condemnors to do.

Law has real world consequences. For instance, Kelo expanded the concept of public purpose to “encompass any economically beneficial goal, guarantee[ing] that these losses [of property] will fall disproportionately on poor communities.”²⁶⁷ Kelo gave a green light to “large corporations and development firms” to “victimize” people who are “less likely to put their lands to the highest . . . social use.”²⁶⁸ Kelo essentially “affirmed that a government may take the private property of one party and give it to another private party if the other pays more taxes.”²⁶⁹ It did not take long to confirm that Kelo “engendered fear across the nation”:²⁷⁰ in the year immediately after Kelo was decided, the Institute for Justice “found that 5783 properties ha[d] been [either] threatened or condemned for private commercial development, roughly equal to the number of such condemnations in the five years preceding Kelo.”²⁷¹ Scholars also found that this Kelo-authorized “private involvement in the exercise of eminent domain” increased the risk of corruption and threat of relocation.²⁷²

Berman serves as another notable example. Over 97% of the people “forcibly removed from their homes”²⁷³ were Black—all for the declared sake of “public safety, public health, morality, peace and quiet, law and order.”²⁷⁴ Post-Berman, “public works projects [of the] 1950s and 1960s destroyed predominantly minority communities in St. Paul, Minnesota, and Baltimore, Maryland.”²⁷⁵ And in 1981, “urban planners in Detroit, Michigan, [used eminent domain to] uproot[] the largely ‘lower-income and elderly’ Poletown neighborhood for the benefit of the General Motors Corporation.”²⁷⁶

So, what will Brinkmann’s impact be? While it is uncertain to what extent it will inform the actions of governmental entities, the impact will certainly not be a societal positive. Instead, it will continue its catastrophic trajectory because Brinkmann encourages, and even rewards, municipalities to lie about their intentions behind condemnation decisions.

CONCLUSION

Sometimes there are more questions than answers, but sometimes asking good questions is better than any answer—an endeavor that is by necessity limited in scope and applicability. And perhaps, this is the case here. The Brinkmann decision raises a lot of questions, ranging from the Brinkmann majority’s disregard of their own Goldstein precedent to a likely misinterpretation of Kelo, which cost the Brinkmanns their lot.

But Brinkmann also sparks an important conversation concerning what could and should be employed instead of the Brinkmann rule. After examining decisions rendered by the Connecticut Supreme Court and the Seventh and Ninth Circuits, all of which stand in opposition (in varying degrees) to Brinkmann, this Note envisions an alternative to the Brinkmann rule via the tripartite burden-shifting standard. But that is not all. This Note also demonstrates the failings of rational basis review, the Equal Protection Clause, and the animus doctrine when applied to addressing bad-faith takings.

The Takings Clause can destroy lives, but it can also build and improve the society in which those same lives exist. Similarly, the Takings Clause can also preserve freedom and even “empower[]” people “to shape and to plan their own destiny in a world in which governments are always eager to do so for them.”²⁷⁷ It is all a matter of perspective, but also—and critically—cultivating good law.

99 S. Cal. L. Rev. 405

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Anna Fein*

*Articles Editor, Southern California Law Review, Volume 99; J.D. Candidate 2026, University of Southern California Gould School of Law; B.A. English 2022, University of California, Los Angeles. Thank you to Professor Jacob Charles, Professor Jonathan Barnett, Lance Entrekin, and the wonderful Southern California Law Review staff for their thoughtful comments. Thank you also to my family for their continued love and support.

Quis Custodiet Ipsos Custodes: Labor & Privacy in the Age of Kidfluencers and the Internet’s Stage Mothers

March 2026March 2026Elinor J. Haddad*

INTRODUCTION

In 2022, a group of minors sued Tiffany Smith, mother and producer of prolific child influencer Piper Rockelle, and her corporation Piper Rockelle Inc. (“PRI”), alleging nineteen claims in total, nearly all for violations of either state tort law or the California Labor Code.¹ The minors had previously appeared in monetized content on Rockelle’s YouTube channel, which then boasted over 8.5 million followers,² as part of a group of children self-nicknamed “the Squad.”³ According to their complaint, they devoted long hours—in some cases more than twelve hours a day for seven days a week⁴—over three years to producing “hundreds” of “highly lucrative” videos but were never compensated, were denied meal and rest breaks while filming, and did not receive regular on-set education.⁵ Following the suit’s initial filing, YouTube demonetized Rockelle’s channel, and venues where Rockelle had upcoming tour dates canceled her appearances.⁶ In 2023, Smith countersued for $30 million, accusing plaintiffs and their parents of defamation, fraud, and extortion; before plaintiffs responded, Smith dropped her lawsuit.⁷ In March 2024, a Los Angeles Superior Court judge denied Smith’s motion for summary judgment, thus scheduling the case for trial.⁸ By October 2024, the parties had settled for $1.85 million.⁹

The suit illustrates the potential for severe damage inherent in the world of child influencers—a world that is, as of now, largely unregulated. The plaintiffs in the suit, and Rockelle herself, represent a common demographic among child influencers (“kidfluencers”): children between ten and sixteen years of age with public, monetized accounts on large social-media platforms like YouTube, Instagram, and TikTok, and talent and training in skills like dancing and singing as well as video editing and other skills required for content creation. Between 2017 and 2020, the plaintiffs appeared in content on Rockelle’s YouTube channel and on her accounts on other platforms; while Rockelle’s early postings were relatively innocuous (videos with titles like “My trip to the Los Angeles Zoo”¹⁰ and “Getting a pet turtle!!!”¹¹), the channel’s tone quickly took a questionable turn, with videos featuring children performing skits, challenges, and pranks in various stages of undress and in suggestive situations accompanied by clickbait thumbnails and titles¹² such as “24 HOURS HANDCUFFED to my ‘BOYFRIEND’ ” (featuring a then-ten-year-old Rockelle),¹³ “11 YEAR OLD BELLY PIERCED **PRANK** (Can’t Say No 24 Hour Challenge) 🚫👌,”¹⁴ and “Asking STRANGERS To Be My BOYFRIEND Challenge **1 DATE = $100** ❤️💵” (featuring a then-twelve-year-old Rockelle).¹⁵

Using the Piper Rockelle lawsuit (“the PRI lawsuit”) as a case study,¹⁶ this Note will focus on the growing number of kidfluencers and the need for standardized, federal laws ensuring their fair labor conditions and preservation of personal privacy. In particular, this Note will discuss the inadequacy of federal and state regulation of two forms of exploitation that present concerns in the kidfluencer context: (1) labor (exploiting a child’s work without compensation, meaningful consent, or regulation) and (2) privacy (exploiting a child’s image or likeness without compensation and meaningful consent).¹⁷ Part I of this Note presents an overview of the kidfluencer phenomenon and the evolution of stage parents from vaudeville and the early motion picture industry to the Internet and social media. Part II describes kidfluencers’ vulnerability to labor exploitation, discussing how measures protecting child performers remain largely unavailable to kidfluencers and require expansion to cover this new demographic of child workers. Part III details the rampant exploitation of kidfluencers’ privacy and analyzes how the increasing legal spotlight on protecting children as social-media users has yet to acknowledge kidfluencers’ privacy and publicity interests and must do so to adequately protect them. Part IV proposes that, in addition to enacting laws to protect the labor and privacy rights of kidfluencers, Congress should empower social-media platforms as enforcers of kidfluencer laws and impose liability on platforms that host content produced in violation of these recognized kidfluencer rights. Ultimately, this Note presents a holistic set of common-sense regulations, grounded in analogous, existing law, that are designed to close the critical gaps in kidfluencer protections as quickly and effectively as possible. This all-encompassing approach—covering both privacy and labor—to regulating children in monetized content is essential given the pervasiveness of their online presence and the reality of ever-advancing online technology that is here to stay.

I. THE ARRIVAL OF KIDFLUENCERS

The influencer economy is worth over $250 billion worldwide¹⁸ and is expected to swell to $480 billion before the year 2030.¹⁹ U.S. brands spend more than $5 billion on influencers each year.²⁰ Massive content-sharing platforms like YouTube, Instagram, and TikTok host millions of influencers who then share content to millions more subscribers.²¹ On YouTube, influencers creating and sharing videos on their “channels” earn revenue based on the number of views their videos generate. When a YouTube channel is monetized, YouTube collects forty-five percent of advertising revenue from the creator’s videos, and the creator receives the remainder.²² With this formula, top creators earn tens of millions of dollars each year—and kidfluencers with at least one million followers can earn $10,000 or more for each sponsored post they share.²³ Before the onset of the PRI lawsuit, PRI made between $4.2 million and $7.5 million annually from social-media advertising alone, and the PRI plaintiffs averaged up to $28,000 per month in YouTube revenue.²⁴

And kidfluencers are a fast-growing demographic in monetized social-media content.²⁵ Social-media accounts listed in children’s names but managed by parents (typically with a moniker like “Managed by Mom” in the account biography) feature young children almost exclusively, with little to no regulations governing the children’s compensation, working conditions, or content output. Thus, children can work extensive hours, receive little to no formal schooling, and have their intimate details shared on the Internet at-large with essentially no recourse and no safeguarding of their earnings from parents or other adults controlling their accounts. Many kidfluencer accounts boast massive followings, with subscribers in the hundreds of thousands or even millions, and the financial payout is huge. Roughly a century ago, states began regulating labor conditions for child performers, many of whom were pushed into the entertainment industry by their parents and subsequently experienced extensive exploitation.²⁶ Now, social media has given stage parents a new arena—one with novel and potentially catastrophic dangers if left unchecked.

A. A Brief History of Stage Mothers

The concept of “stage parents” and “stage mothers” enjoys a long and controversial history in American culture.²⁷ Early discussion of overbearing and even abusive parents pushing their children into careers on stage and in film arose from personal anecdotes of early film stars. Legendary movie star Judy Garland often recounted growing up on a vaudeville stage in the 1920s and 1930s, and the intensity with which her mother, Ethel Gumm, pushed her to perform; in a 1967 interview, Garland, recalling her early days of performing onstage, stated, “[My mother] would sort of stand in the wings . . . and if I didn’t feel good, if I was sick to my tummy, she’d say, ‘You get out and sing, or I’ll wrap you around the bedpost and break you off short!’ So, I’d go out and sing.”²⁸ Garland, cemented in American culture by her performance as Dorothy in 1939’s The Wizard of Oz, later characterized her mother as “the real Wicked Witch of the West” and described how Ethel began giving her pills to increase energy or to promote sleep before Garland’s tenth birthday.²⁹

Nearly a century and the passage of much legislation for child performers later, stage parents like Ethel Gumm remain, motivated by many of the same interests—money, fame, power, attention—as their twentieth-century counterparts. These interests can easily collide with children’s needs, and the development of laws protecting child actors demonstrates a commitment by the traditional entertainment industry to limiting the effects of such conflict. Today, child actors in multiple states, including California and New York, and members of entertainer unions like SAG-AFTRA have protections that Judy Garland’s generation did not, such as guaranteed access to wages, adequate education, and limitations over working hours.³⁰ These regulations acknowledge both the potential conflict of interest between stage parents and child performers as well as the reality of children as a key and enduring presence within the entertainment industry. But while child actors today are more protected from parents who squander their earnings or force them to work oppressively long hours, children are still at the mercy of their parents as to whether they ultimately pursue an entertainment career in the first place and, if they do, the relentlessness of that pursuit.

In 2022, former child star Jennette McCurdy released her memoir I’m Glad My Mom Died. Chronicling her ascent from poverty to fame on the highly successful Nickelodeon show iCarly, McCurdy detailed her late mother’s longstanding obsession with McCurdy’s success as a child actor, regardless of McCurdy’s own disinterest in such a career. Recalling the initial signing meeting with her first agent, McCurdy wrote,

“It’s important that Jennette wants to act, in order for her to do well,” [the agent] says.

“Oh, she wants this more than anything,” Mom says as she signs on the next page’s dotted line.

Mom wants this more than anything, not me. [Auditioning] was stressful and not fun, and if given the choice, I would choose to never do anything like it again. On the other hand, I do want what Mom wants, so she’s kind of right.³¹

McCurdy emphasized her lack of agency and meaningful choice in embarking on her career as an actor, framing her mother’s eventual death from cancer as the catalyst that allowed McCurdy to leave behind the career she never wanted—though she could not as easily escape her fame.³²

When I was six years old, she pushed me into a career I didn’t want. I’m grateful for the financial stability that career has provided me, but not much else. I was not equipped to handle the entertainment industry and all of its competitiveness, rejection, stakes, harsh realities, fame. I needed that time, those years, to develop as a child. To form my identity. To grow. I can never get those years back.³³

B. Reality Television Bridges the Gap from Film and Television to the Internet

In 2011, the Lifetime reality series Dance Moms premiered, unwittingly marking the beginning of a new era and a new medium for twenty-first-century stage parents. Following a group of young competitive dancers and their intense and argumentative mothers, Dance Moms became an overnight sensation and launched the show’s young dancers into stardom. In the show’s early seasons, the dancers’ mothers spoke of their hopes for their children to achieve careers on a Broadway stage and in film.³⁴ In 2011, Instagram was in its infancy and the advent of TikTok was years away; a handful of hit reality shows featuring children, like Jon and Kate Plus 8 and the ill-fated 19 Kids and Counting,³⁵ existed but the children on those shows were not positioned adjacent to entertainment careers and also had not built independent followings or fanbases—the concept of kidfluencers was entirely new. Dance Moms changed the game.³⁶

Today, the original Dance Moms dancers are in their early to mid-twenties and their primary careers are as social-media influencers.³⁷ Instead of becoming “stars” in a traditional sense on stage and in film, the Dance Moms girls achieved stardom as themselves, beloved by young fans of their show who flocked to follow them on social media as Instagram and other platforms simultaneously took off.³⁸ While the first Dance Moms dancers did not begin their time on the show imagining kidfluencer fame, cast members during the show’s later seasons arguably did. In 2016, a group of younger dancers joined the now-wildly successful Dance Moms cast; entering the show in the post-Instagram and Musical.ly (TikTok’s forerunner application) world, these new dancers had social-media pages ready when the show’s global audience began following them in droves. Now teenagers, many members of Dance Moms’ second generation work as kidfluencers today³⁹—and the world of kidfluencers and reality child stars is a small one. Dance Moms’ second generation includes seventeen-year-old Lilliana Ketchman and eighteen-year-old Elliana Walmsley. Ketchman was named by the PRI plaintiffs as a perceived competitor to Rockelle, “anger[ing]” Smith; the plaintiffs believed Smith subsequently used “dirty tactics” to cause a significant decline in Ketchman’s followers, viewership, and revenue in January 2021.⁴⁰ Meanwhile, Walmsley is a former member of Rockelle’s Squad, though she was not a party to the PRI lawsuit.⁴¹

Image 1. Former Dance Moms Cast Member and Current Influencer Kendall Vertes’s Instagram⁴²

Image 2. Former Dance Moms Cast Member and Current Influencer Chloé Lukasiak’s Instagram⁴³

Barely a decade after Dance Moms’ premiere and Instagram’s launch, kidfluencing is now eclipsing the once-well-trodden paths to child stardom found on television and in film. Piper Rockelle exemplifies this phenomenon:

Paparazzi don’t wait outside Piper’s fuchsia-painted mansion in the San Fernando Valley, but among a young, YouTube-fixated demographic, the ebullient brunette is idolized. As a rising star on the most-watched video-content platform of her generation, Piper bypassed the traditional paths of Nickelodeon and Disney to become a millionaire through the monetization of her social media content.

Propelled by the force of millions of likes and heart emojis, Piper was making between $4.2 million and $7.5 million a year before the Squad’s lawsuit. Her YouTube videos had amassed over 1.87 billion views, and companies such as NBCUniversal, Disney and Amazon were paying her to promote their products on Instagram and TikTok. Super-VIP tickets on her tour—a live variety show that trades on the Squad’s online personas—went for $599.99. She was also selling merchandise on her website, offering personalized greetings via Cameo and making music. She has released seven singles.⁴⁴

The PRI “empire[],” much like many YouTube money machines, “was built at home.”⁴⁵ Smith’s live-in boyfriend, Hunter Hill, also a defendant in the PRI lawsuit, filmed and edited the Squad’s videos in the Smith home, and Smith planned video content and coordinated filming schedules for Squad members.⁴⁶ Initially, Rockelle and other members of the Squad sought success as actors on stage and in film; after her social-media channels took off, however, Rockelle narrowed her focus solely to kidfluencing, while Smith “strongly discouraged” other Squad members from continuing to pursue work beyond their growing YouTube empire.⁴⁷

And though stage parents like Smith are pursuing fame for their children in a new medium, the same conflicts of interest between parents and children that persist in film and television recur in the Internet-child-stardom era. In the early 2000s, the challenges of living in poverty colored Jennette McCurdy’s high-stress journey into the television industry; just a few years later, PRI would allegedly take advantage of children also coming from limited means in order to profit from their involvement in the Squad. Said one PRI plaintiff, “[s]ingle mothers using YouTube to support the family—there’s a lot of those in the [Squad’s families].”⁴⁸

While the PRI lawsuit is seemingly unique (as of now) in terms of its size and the breadth of the allegations at-issue, Rockelle and the Squad are in good company as part of a vast, bankable movement of kidfluencer content creators. Kidfluencer accounts are undeniably popular: a 2019 study revealed that videos featuring a child younger than thirteen-years-old receive three times the views garnered by videos without children.⁴⁹ And critics of the kidfluencer phenomenon say that platforms like YouTube, as well as brands that partner with kidfluencers for paid product placements, are deliberately skirting child labor laws because of kidfluencer accounts’ popularity and payoff; in their view, the legal gray area surrounding kidfluencers enables platforms and brands to make “billions” from kidfluencer content while avoiding the costs and coordination that film and television productions are legally required to undertake to work with child performers.⁵⁰ YouTube currently makes it fairly easy, with strategic use of algorithmic tools like hash-tagging, to achieve monetized status, requiring that channels reach just 1,000 subscribers and 4,000 viewing hours within twelve months to become monetized; as of last year, YouTube hosted roughly two million monetized accounts.⁵¹

Between YouTube, Instagram, and TikTok, opportunities for children to build a massive online presence—and for adults to make serious money off their backs—are exploding. As the last century of developing adequate legal protections for child actors demonstrates, this level of financial promise coupled with children as the key moneymakers is a recipe for exploitative disaster. Now that the recipe has found a new home on the Internet, the potential for lifelong damage to the children behind the money machines has reached devastating levels. The baby steps that some lawmakers are beginning to take toward protecting, primarily, kidfluencers’ compensation are, to be sure, essential regulatory efforts. But the reality of the kidfluencer world demands a much more all-encompassing approach—one that treats kidfluencers as the professionals they are and treats the Internet as the uniquely permanent and wide-ranging medium it is. Making parents the unchecked shot-callers over their children’s labor conditions and privacy is an untenable arrangement because of the potential conflict of interest inherent in parents choosing between substantial monetary gain and their children’s best interests. Kidfluencers and the Internet (much like child film stars and the motion picture industry as seen a century ago) are not going anywhere. So, lawmakers must get serious about how to regulate them.

II. REGULATING THE LABOR OF KIDFLUENCERS

While federal law does provide some protections for child labor, it expressly exempts child performers from those protections. Thus, to the extent that child entertainers receive protection from labor exploitation, those protections come either from state law or from unions for media professionals such as SAG-AFTRA. However, summarizing what relevant federal law is present in this area helps contextualize the gaps in child entertainer regulations that state laws and unions have had to attempt to fill. And while neither state laws (for the most part) nor unions protect kidfluencers’ labor rights, they do protect child entertainers and thus provide helpful and relevant models for what effective legal protections for kidfluencers’ labor should entail.

Only a handful of states have laws governing child entertainers, and the most stringent laws exist in California and New York; both states limit child entertainers’ working hours, regulate their education, mandate their on-set supervision and advocacy, and protect their wages. All of these regulations should be expanded to cover kidfluencers; further, because kidfluencers primarily work at home and thus are not restricted by a need to live within range of entertainment hubs like Los Angeles and New York City, these regulations should apply to kidfluencers in every state through federal legislation. Recent legislation in California, Illinois, Utah, and Minnesota protecting primarily kidfluencers’ wages, while helpful, is but one small piece of the comprehensive regulatory scheme needed to adequately protect kidfluencers’ labor.

A. Existing Labor Regulations for Child Entertainers

1. Federal Measures for Child Workers: The Fair Labor Standards Act

In 1938, the Fair Labor Standards Act (“FLSA”) marked a new era for regulation of child workers. Setting the minimum age of employment for most non-agricultural work at sixteen,⁵² the act came on the heels of the United States Supreme Court striking down laws aimed at regulating commercial goods produced by child workers in Hammer v. Dagenhart⁵³ and the Child Labor Tax Case.⁵⁴ These decisions were but one component of a long struggle by labor reformers to protect child workers—by the twentieth century, reformers heavily emphasized how child labor led to extensive health problems and the deprivation of adequate education.⁵⁵ In developing their platform regarding child labor, advocates also had to reckon with the difficult but inescapable reality that many child workers came from immense poverty. Some reformers lobbed heavy criticism at parents who they claimed were “too lazy to work” and had “become accustomed to subsist[ing] by their children’s labor.”⁵⁶

The FLSA still has multiple exemptions, some critical to child entertainers and kidfluencers alike: the FLSA exempts from regulation “a parent employing his own child”⁵⁷ and does not apply to “any child employed as an actor or performer in motion pictures or theatrical productions, or in radio or television productions.”⁵⁸ The latter exemption is known as the “Shirley Temple Act” because without it, the then-wildly popular child star would have disappeared from movie screens.⁵⁹ Further, the lawmakers behind the FLSA did not consider entertainment work especially hazardous or oppressive, unlike the dangerous factory and agricultural labor the FLSA was intended to address, and thus excluded minors in entertainment from coverage.⁶⁰ Due to this exclusion of child performers from federal regulation, labor rights for child performers fall under state law, and states have adopted a variety of protections (including, in seventeen states, no protections at all) for this demographic.⁶¹

2. SAG-AFTRA, States’ Approaches & the Coogan Law

Some of the most comprehensive protections for child entertainers come from SAG-AFTRA, the primary union for media professionals in the United States. SAG-AFTRA’s collective bargaining agreements with production companies require that companies adhere to the standards delineated in SAG-AFTRA’s contracts as well as applicable state law regarding employment of minors.⁶² Thus, SAG-AFTRA functions as the enforcer of its own standards for employing child performers; its collective bargaining agreements act as a bottleneck against potentially negligent or exploitative employment practices because production companies that are SAG-AFTRA signatories must comply with these standards in order to employ children with SAG-AFTRA membership.⁶³ SAG-AFTRA restricts the working hours of child entertainers working anywhere in the United States, stipulating that minors may not work before 5:00 a.m. or after 10:00 p.m. on days preceding a school day (and may not work after 12:30 a.m. on mornings of non-school days); SAG-AFTRA further limits total working hours per school day to four hours for children ages six to eight, five hours for children ages nine to fifteen, and six hours for children ages sixteen and seventeen.⁶⁴ School days for SAG-AFTRA contract purposes conform to the public school calendar for the district where the minor resides, and SAG-AFTRA requires that school-age minors receive an average of at least three hours of educational instruction on school days.⁶⁵ Minors between six months and two years old may work up to two hours while minors between two and five years old may work up to three hours; only preschool-age minors do not attend on-set school.⁶⁶

SAG-AFTRA’s protections for child actors’ compensation also conform to applicable state law, where present.⁶⁷ Originally passed in California in 1939, the Coogan Law now requires that fifteen percent of all minors’ earnings for entertainment work be placed in a blocked trust account (known as a “Coogan Account”) accessible only by the minor once they reach adulthood.⁶⁸ The law’s namesake, child actor Jackie Coogan, enjoyed a tremendously successful career in the 1920s after being discovered by Charlie Chaplin.⁶⁹ But despite Coogan’s millions of dollars in earnings as a child star, he only ever received a weekly allowance of $6.25 from his mother until, when Coogan turned twenty-one, she ultimately refused to ever turn over more of his earnings to him.⁷⁰ Though intended to prevent exploitation like that Coogan suffered from befalling future young actors, the first iteration of the Coogan Law had critical gaps, including merely permitting, rather than mandating, trust accounts for child performers.⁷¹ It was precisely these gaps that enabled the parents of Shirley Temple herself to devote her earnings entirely to supporting their family of twelve even after the initial passage of the Coogan Law; after her acting career slowed down in her teenage years, the generation-defining star’s “only assets were a few thousand dollars and the deed to her dollhouse in the back yard [sic] of her parents’ Beverly Hills home.”⁷² California closed the gaps in its Coogan Law in January 2000 following advocacy by SAG-AFTRA for unequivocal legal recognition that minors’ earnings from entertainment work are their own.⁷³ Currently, New York, Illinois, Louisiana, and New Mexico all have trust-account mandates for child actors comparable to California’s Coogan Law.⁷⁴

Meanwhile, some states also have laws concerning child performers’ labor conditions in addition to compensation requirements and union protections. California mandates a maximum eight-hour workday for child entertainers in addition to three hours of on-set education for each weekday that children work; California also requires that a state-licensed teacher or welfare worker be present at all times on sets where child performers are working,⁷⁵ and that adults obtain permits before employing children and ensure that a minor’s parent or guardian is within their sight and hearing range at all times that the minor is on set.⁷⁶ In New York, employers of child entertainers working three or more consecutive days must provide a credentialed on-set teacher to ensure that state educational requirements for child entertainers are met.⁷⁷

3. When Does the Home Become a Set?

State laws protecting child entertainers, however well-established, largely do not extend to kidfluencers—even in states like California, which has very strict regulations for child performers⁷⁸ (PRI is located in Los Angeles and the Squad’s videos were filmed there⁷⁹). If we apply California and SAG-AFTRA’s labor regulations for child actors to PRI and the Squad, PRI—sometimes allegedly, other times admittedly—fell far short.⁸⁰ Smith did not obtain permits to work with the minors in the Squad.⁸¹ Some PRI plaintiffs claimed they worked up to twelve hours per day, seven days a week, without rest and meal breaks and without compensation.⁸² The mother of two plaintiffs, sisters, worried that one of her daughters “was falling behind in school because she wasn’t getting enough sleep” due to Smith’s demanding filming schedule.⁸³ Some of the plaintiffs’ parents alleged that Smith “regularly forbade other adults from being on set”;⁸⁴ Smith reportedly only ever “briefly” hired an on-set teacher for Squad members and “was uninterested in the children’s education,” even though none of the minors attended traditional in-person school during their years filming.⁸⁵ After some of the plaintiffs’ parents hired a private tutor to work with the minors in Smith’s guesthouse, Smith “barged” into the guesthouse mid-lesson, “screaming” that the child currently studying needed to “report to set immediately” and that “she didn’t care whether the tutor’s hour wasn’t up.”⁸⁶ The tutor left her position teaching the Squad after the incident.⁸⁷ Plaintiffs also reported that Rockelle herself had significant educational gaps, claiming Rockelle, who has only ever been homeschooled,⁸⁸ had trouble reading and “never” did schoolwork.⁸⁹

Commenting on the allegations in the PRI lawsuit regarding failure to provide compensation as well as the maintenance of an oppressive work environment, plaintiffs’ attorney Matthew Sarelson remarked, “Imagine if these kids had been on a movie set for Lionsgate . . . . People would go to jail if this had happened at a studio.”⁹⁰ But kidfluencers occupy a legal gray area existing somewhere between professional child performers and the kids-next-door getting together to make a funny video.⁹¹ And the PRI plaintiffs assert that that legal gray area has given rise to a “Wild West atmosphere of content creation” where adults can push children into extensive, high-profile content creation with little to no oversight.⁹²

Throughout the PRI lawsuit, Smith emphasized that she “did not view her home as a workplace” nor herself as the plaintiffs’ employer; she described the Squad’s activities as “ ‘kids get[ting] together voluntarily to collaborate on making videos,’ ” a far cry, in her view, from a professional studio environment that would necessitate her compliance with state child labor laws.⁹³ Smith’s lawyer commented, “There is tremendous uncertainty about what labor laws apply in the context of filming a YouTube video at home, with an iPhone . . . . At what point is that a professional production?”⁹⁴ Meanwhile, Sarelson argued that “PRI should be treated no differently than a traditional production company” and expressed “hopes [that] the lawsuit sparks change in the social media space.”⁹⁵ Some of PRI’s activities—including using a professional camera to film content and posting audition notices for young actors to film with Rockelle—could indicate that the corporation was effectively operating as a professional production company.⁹⁶ But currently, no federal legislation exists delineating the line between making home videos and shooting professional social-media content.

B. New Efforts: Expanding Child Labor Regulations to Cover Kidfluencers

A handful of states are beginning to enact labor protections for kidfluencers, underscoring the desire and need for a comprehensive, federal approach to kidfluencer regulation.⁹⁷ In July 2025, Minnesota enacted some of the most significant kidfluencer regulations so far: not only does the state now mandate protected trust accounts to safeguard kidfluencers’ earnings, but it also prohibits children less than fourteen years old from appearing in monetized content at all.⁹⁸ Instead of designing its law solely as a means of “legitimizing” kidfluencers as akin to child entertainers, University of Minnesota Law School Dean William McGeveran said Minnesota “ ‘set [its law] up as almost a child labor law. . . . It’s about kids needing to be able to be paid for work that they do . . . . And if they’re 13 and under, kids can’t work in the ice cream shop and they can’t work in their parents’ content creation either.’ ”⁹⁹ Minnesota’s statute does not enshrine any further labor regulations for kidfluencers over fourteen beyond protecting their earnings.

For the other six states that now protect kidfluencers’ labor, their measures are limited to regulating kidfluencers’ compensation. In July 2024, Illinois became the first U.S. state to enact laws expressly protecting kidfluencers’ earnings.¹⁰⁰ Content creators in Illinois must now set aside a portion of earnings in a protected trust account for all minors age sixteen and under who appear in at least thirty percent of their monetized content.¹⁰¹ Illinois Senator Dave Koehler, who introduced the law, took action after Shreya Nallamothu, a fifteen-year-old high school student in his district, alerted him to the issue of young children being featured extensively online with no labor protections for them in place.¹⁰² “This new digital age has given us tremendous opportunities to connect with one another, but it’s also presented legal issues that have never existed before,” said Koehler.¹⁰³ “We need to work with our children to see the problems they face and tackle them head-on before any further harm is done.”¹⁰⁴

The Illinois law protects earnings for minors under the age of sixteen while stipulating that minors under sixteen who produce their own videos are not considered “vlogger[s]” subject to the compensation and record-keeping requirements established by the law.¹⁰⁵ The law explicitly includes “famil[ies]” in its definition of “vlogger[s],” thus requiring parents who produce content featuring their own children (as well as any other children) to set aside the minors’ earnings if their inclusion reaches the specified threshold. The law also amends Illinois’ Child Labor Law by allowing teenagers who are at least eighteen years old to take legal action against their parents for failing to compensate them in accordance with the new requirements.¹⁰⁶ In response to the law, University of Alabama professor of digital media Jessica Maddox called the legislation “long overdue” and pushed for other states to take similar steps as well as expand protections to allow eighteen-year-olds to petition for the removal of social-media content that features them.¹⁰⁷ Emphasizing the need for regulations that adequately measure up to the reality of the kidfluencer phenomenon, Maddox commented:

[Kidfluencing and vlogging] are actual jobs, possible ways of earning income, that need protection . . . . Since there aren’t unions, there isn’t systemic protection in terms of laws, that is why Illinois law is super important for setting the precedent that this type of labor needs to be protected, especially for minors.¹⁰⁸

Meanwhile, on September 26, 2024, California Governor Gavin Newsom signed legislation expressly expanding the state’s Coogan Law to cover kidfluencers sharing content on YouTube and similar platforms.¹⁰⁹ The bill in question, AB 1880, defines “content creator” as “an individual who creates, posts, shares, or otherwise interacts with digital content on an online platform,” including “vloggers, podcasters, social media influencers, and streamers”; “online platform” is defined as “any public-facing website, web application, or digital application.”¹¹⁰ Regarding Governor Newsom’s support for the bill, bill author Assemblymember Juan Alanis remarked:

I thank Governor Newsom for signing AB 1880 and for his commitment to addressing the unique challenges minors face as online content creators in the rapidly growing digital entertainment industry. Child content creators deserve the same protections under the Coogan Law as their counterparts in traditional entertainment. With this bill, California takes a significant step in protecting the financial rights and well-being of child online influencers by extending critical protections against exploitation and ensuring they receive a fair share of earnings from their content.¹¹¹

Former child actor and successful musician Demi Lovato championed the bill as a critical step toward “grant[ing] agency” toward kidfluencers upon reaching adulthood.¹¹²

Signed alongside AB 1880 was SB 764,¹¹³ the Child Content Creator Rights Act (“CCCRA”), authored by Senator Steve Padilla.¹¹⁴ The CCCRA stipulates that video bloggers (“vloggers”) engage a minor “in the work of vlogging” when at least thirty percent of the vlogger’s monetized visual content includes “the likeness, name, or photograph of the minor.”¹¹⁵ Vloggers engaging minors in vlogging work under the definition of the CCCRA are required to keep detailed records of the minor’s age during the vlogging period and the extent of their appearance in and compensation for monetized content.¹¹⁶ Contracts for vlogging work between a minor and their parent must be approved by a court to avoid application of the bill’s terms; “[i]n determining whether to approve such a contract, the court shall consider whether the terms of the contract are at least as beneficial to the minor as the compensation the minor would otherwise receive under [the CCCRA].”¹¹⁷

And as of May 2025, Utah now also mandates protected trust accounts for kidfluencers.¹¹⁸ With similar provisions to those in California and Illinois, Utah’s law also lays out procedures for managing kidfluencers trusts and also requires that content creators “inform a minor’s parents that the minor is featured” in their content if, as in the PRI lawsuit, the creator is not themselves the minor’s parent.¹¹⁹ In the same vein, Virginia, Arkansas, and Montana all enacted kidfluencer laws in 2025, and each state focused its labor protections for kidfluencers on compensation safeguards, mandating Coogan Account-esque trusts for kidfluencers appearing in a certain percentage of creators’ content.¹²⁰

As lawmakers in California, Minnesota, Illinois, Utah, Arkansas, Montana, and Virginia have recognized, kidfluencing is a job, plain and simple. It demands the same safeguards against labor exploitation that are accepted throughout the United States for children in traditional entertainment jobs, along with additional protections that are necessary to address issues unique to kidfluencing. Thus, while the recent legislation in these states represents important progress, much more robust protections for kidfluencers—regulations modeled after California’s existing laws for child actors—are needed. Because of the geographic flexibility inherent in kidfluencer work, such protection is needed at the federal level to be fully comprehensive; further, kidfluencer regulations must not only mandate safeguards to compensation, but also ensure limits on working hours, guaranteed access to education, on-set supervision and advocacy, and the obtainment of permits to employ minors. As it stands today, even for kidfluencers now protected from financial exploitation in a handful of states, the rest of their working conditions remain largely unregulated—as does their privacy.

III. REGULATING THE PRIVACY OF KIDFLUENCERS

Growing up in the pop culture spotlight compromises a child’s privacy and reputation in ways that can be painful and enduring. As child actor Jennette McCurdy put it, “Growing is wobbly and full of mistakes, especially as a teenager—mistakes that you certainly don’t want to make in the public eye, let alone be known for for the rest of your life. But that’s what happens when you’re a child star.”¹²¹ And for kidfluencers, the extent to which their privacy and reputations are at stake is much greater. For Shirley Temple and Judy Garland, while the laws protecting them were still woefully inadequate, the personal information they shared with the public was limited to their performances as fictional characters, filmed on a soundstage by a camera that never followed them home. But for kidfluencers, the camera lives at home. Nothing is off-limits and every experience, every mistake, every embarrassment is potential content with dollar signs attached to it.

If labor regulations for kidfluencers are largely undeveloped, laws protecting kidfluencers’ privacy seem like less than an afterthought—perhaps even conceptually oxymoronic given that the point of kidfluencer content, in general, is to share children’s personal lives online. Even as lawmakers take steps to protect children as Internet users, kidfluencers are nowhere to be found in their policies. Though states have common law rights to privacy and publicity and a 1998 federal act regulates online platforms’ collection of children’s personal data, these rights can all generally be waived with consent—and for children, the consenting parties are their parents. Meanwhile, online platforms typically limit accounts to users aged thirteen and older, but given the numerous active kidfluencer accounts heavily featuring children under thirteen, platforms do not appear to restrict accounts that overwhelmingly feature children if the accounts are set up and managed by adults. These gaping loopholes in existing rights and policies allow kidfluencer accounts to thrive unchecked,¹²² leading to severe, long-term harm to and exploitation of kidfluencers that society is likely only beginning to reckon with.¹²³

A. Privacy Regulations for Children as Users Online

Existing and Proposed Federal Regulations for Children Online

i. The Children’s Online Privacy Protection Act of 1998

The Children’s Online Privacy Protection Act of 1998 (“COPPA”) is the primary set of federal regulations concerning children’s online privacy, covering consent and notice requirements for online platforms and entities that collect personal data from children.¹²⁴ COPPA’s “primary goal . . . is to place parents in control over what information is collected from their young children online,”¹²⁵ and it focuses on protecting children as users of online platforms as opposed to children appearing in online content. COPPA requires the Federal Trade Commission (“FTC”) to regulate online collection of children’s data and was last amended in 2013 in an effort to keep up with advancing technology.¹²⁶ Kidfluencers are not explicitly covered by COPPA or any other federal law.

As a protective measure for children who are merely consumers of online content, COPPA is reasonably comprehensive (though it needs continuous updates to remain effective). Its critical failure as a protective measure for kidfluencers, however, lies in its parental-consent-based structure—and in the fact that it makes no actual mention of kidfluencers at all. COPPA only applies to children under thirteen and requires that online entities obtain parental consent before collecting children’s personal data from children. COPPA prohibits “unfair and deceptive acts and practices in connection with the collection and use of personal information from and about children on the Internet.”¹²⁷ The act applies to websites or online services “directed to children”; in determining whether a given platform qualifies under this standard, the FTC considers the platform’s “subject matter,” “use of . . . child-oriented activities and incentives,” and “presence of child celebrities” as among relevant factors.¹²⁸ COPPA defines “collection” as “the gathering of any personal information from a child by any means, including . . . [r]equesting, prompting, or encouraging a child to submit personal information online,” “[e]nabling a child to make personal information publicly available,” and “[p]assive tracking of a child online.”¹²⁹ “[P]ersonal information” under COPPA includes identifiers like first and last name, physical address, and a “photograph, video, or audio file where such file contains a child’s image or voice.”¹³⁰ “Child” under COPPA includes only “individual[s] under the age of 13.”¹³¹

Before online entities collect personal data from a child, COPPA requires that the child’s parent receive adequate notice about the information collected and its intended use and that the parent consent to such collection.¹³² Online platforms also must provide parents with a “reasonable means . . . to review the personal information collected . . . and to refuse to permit its further use or maintenance.”¹³³ COPPA specifies that any means employed for parents to review collected information cannot be “unduly burdensome” to the parent and asserts that parents have the right to “at any time . . . refuse to permit . . . further use or future online collection of personal information . . . and to direct the [online platform] to delete the child’s personal information.”¹³⁴ Platforms have the right to terminate a child’s use of its services if the child’s parent revokes consent and requests deletion of collected information.¹³⁵ Platforms also must only retain children’s information for “as long as is reasonably necessary to fulfill the purpose for which the information was collected.”¹³⁶

Lastly, COPPA includes safe harbor provisions, allowing online entities that follow approved sets of self-regulatory guidelines to be deemed compliant with COPPA and eligible for safe harbor treatment shielding them from potential liability.¹³⁷

ii. COPPA 2.0

In May 2023, U.S. Senator Edward Markey, the author of COPPA, alongside Senator Bill Cassidy, introduced a new version of COPPA, “COPPA 2.0.”¹³⁸ After the Senate Commerce, Science, and Transportation Committee unanimously advanced COPPA 2.0 in July 2023, the Senate passed the bill in August 2024.¹³⁹ Senators Markey and Cassidy then reintroduced the bill in March 2025.¹⁴⁰ In early 2024, COPPA 2.0 cosponsor Senator Ted Cruz described the bill’s purpose as ensuring that no child leaves behind a digital footprint:

When Congress first passed the Children’s Online Privacy Protection Act, Americans were using dial-up to search “Ask Jeeves” instead of Google. Now, kids can access the Internet in the palm of their hands, and tech companies routinely surveil and target America’s youth. I’m proud to have worked with Sens. Markey, Cantwell, and Cassidy on bipartisan legislation to empower parents to safeguard their children’s online privacy and hold tech companies responsible for keeping minors safe from data collection. Every child deserves to grow up free of a digital footprint, and this bipartisan legislation is one step closer to achieving that goal.¹⁴¹

Championed as a means of bringing “children and teen’s online privacy standards into the 21st century,”¹⁴² COPPA 2.0 enumerates additional categories of online platforms, including mobile applications,¹⁴³ and forms of personal data, including biological and physiological information.¹⁴⁴ Most significantly, however, COPPA 2.0 creates an entirely new class of protected minors: teenagers between thirteen and sixteen years old.¹⁴⁵ Under COPPA 2.0, teenagers—not their parents—consent to collection of their own personal data and are empowered to request review of collected data as well as revoke consent for data collection.¹⁴⁶ However, COPPA 2.0 does not permit teenagers to withdraw consent for their own data that was collected with their parents’ consent before they turned thirteen.¹⁴⁷ The omission of this right, under either iteration of COPPA, is particularly sobering in the kidfluencer context because it prevents kidfluencers from compelling platforms to remove their data, collected before age thirteen, in the event that their parents cannot or will not do so.

2. Online Platforms’ User Age Restrictions

The largest social-media platforms typically require users to be at least thirteen years old,¹⁴⁸ though caveats to this rule exist. YouTube’s terms of service specify that users “must be at least 13 years old to use [YouTube]; however children of all ages may use [YouTube and YouTube Kids] . . . if enabled by a parent or legal guardian.”¹⁴⁹ TikTok requires users to be at least thirteen years old,¹⁵⁰ and TikTok’s settings default accounts associated with minor users to private mode; TikTok users ages sixteen and seventeen can choose to make their accounts public.¹⁵¹

Instagram also requires that users be at least thirteen;¹⁵² on September 17, 2024, Instagram began defaulting all accounts created by users who indicated they are under eighteen to private mode.¹⁵³ These changes, which Instagram says are being “rolled out on an individual basis,”¹⁵⁴ are part of Instagram’s new “Teen Accounts” initiative promoted as a means of increasing safety for minors using the platform.¹⁵⁵ Under the “Teen Accounts” setup, users ages sixteen and seventeen can change the default privacy setting themselves to make their accounts public; minors under sixteen need their parents’ permission to do so.¹⁵⁶

It is not clear whether Instagram’s recent changes will affect accounts that feature minors but are at least ostensibly managed by an adult (as most kidfluencer accounts typically are); however, Instagram makes no mention of such accounts in its communications about this new measure, while stipulating that the “Teen Accounts” setup applies to “users.” Thus, even as platforms begin rolling out age restrictions, kidfluencer accounts continue to

occupy a gray area outside of the growing spotlight on child social-media users.

B. Relevance and Current Limitations of the Common Law Rights of Privacy and Publicity

In the United States, the common law rights of privacy and publicity are “distinct” from one another and “intended to vindicate different interests,” though the latter initially evolved out of the former.¹⁵⁷ While the right of publicity enshrines the “right to control the commercial value of one’s identity,”¹⁵⁸ the right of privacy “protects one’s right ‘to be let alone.’ ”¹⁵⁹ The common law right of privacy comprises four tort causes of action: intrusion upon seclusion, public disclosure of private facts, false light, and appropriation.¹⁶⁰

The common law right of publicity developed out of both the right of privacy and intellectual property law, and has existed formally in the United States since the 1970s.¹⁶¹ While the United States Supreme Court recognized the existence of the right of publicity in 1977 in Zacchini v. Scripps-Howard Broadcasting Co.,¹⁶² there is no federal right of publicity; rather, the right of publicity exists at the state level and is currently recognized in thirty-five states, including California.¹⁶³ The right of publicity stipulates that individuals have a common law right against appropriation of “the commercial value of [their] identity . . . without consent”;¹⁶⁴ inherent in the right is the recognition that “an individual’s likeness” is that individual’s “own property.”¹⁶⁵ The right of publicity is based on three core justifications: (1) the right to “reap the fruit of [one’s] labors,” connected to concerns about unjust enrichment;¹⁶⁶ (2) the “copyright-incentive theory” that the law must protect the individual’s persona so as to promote creative artistry; and (3) the need to protect “consumer[s] from advertising deception.”¹⁶⁷ Section 3344 of the California Civil Code (“section 3344”) codifies California’s common law right of publicity and prohibits use of another’s image or “likeness” for profit without consent.¹⁶⁸ For minors, however, it is precisely the element of “consent” that is likely to prove most challenging if and when section 3344 is invoked to protect their rights, for the law expressly recognizes consent by a minor’s parent or guardian as equivalent to the minor’s own consent.¹⁶⁹

While the PRI lawsuit is currently unique, it illustrates how disputes over consent are likely to be central to any efforts to protect kidfluencers’ privacy and publicity rights under the common law and corresponding statutes. Three plaintiffs in the PRI lawsuit alleged violations of both section 3344 and California’s common law right of publicity;¹⁷⁰ Smith argued that she could not be liable under section 3344 and the common law precisely because the parents of the three plaintiffs had consented to the use of their children’s likenesses for commercial purposes on Rockelle’s channel.¹⁷¹ The plaintiffs disputed the fact of such consent¹⁷² and, in denying summary judgment in March 2024, the Superior Court of California ruled that these claims created issues of triable fact. Presumably, parents of the other eight plaintiffs had consented to use of their children’s likenesses for profit by Smith and PRI. And given that no plaintiff ever alleged that their parent had no knowledge whatsoever of their appearance in videos on Rockelle’s channel, it follows that the parents of the three children alleging publicity violations simply may not have given meaningful consent.

At least for situations like the ones in which these three PRI plaintiffs found themselves, requiring that online platforms verify meaningful consent and notice by kidfluencers or their parents to use of the child’s likeness in monetized content would counteract harm. But still further, the lack of application of recognized privacy and publicity rights to the kidfluencer context as well as the parental-consent waiver’s potential for conflicts of interest in that context is representative of the current limitations of existing laws. Looking at the plain language and spirit of the recognized rights of privacy and publicity alongside the raw reality of the kidfluencer phenomenon, as typified by the PRI lawsuit, it follows not only that our society and legal system should care about protecting kidfluencers’ privacy and publicity rights, but that we in fact do care about it. However, our society has not yet recognized how our concern for privacy and publicity rights implicates kidfluencers due to their novelty; and it would likely take years of litigation—and kidfluencer exploitation—before the common law could produce a legal framework appropriate for the competing claims of parents and kidfluencers to control over the child’s rights to privacy and publicity.

C. Falling Through the Gaps: Protecting Kidfluencers’ Privacy

1. Kidfluencing’s Unique Threat to Privacy

The Senate’s passage of COPPA 2.0 indicates a strong desire on the part of lawmakers to protect children online. But thus far, kidfluencers are missing entirely from that conversation—and to disastrous results. The types of information COPPA and COPPA 2.0 mention specifically as constituting “personal” data worth protecting—full names, online contact information, photographs, video and audio files containing a child’s image or voice, geolocation information, and more—are available in droves on kidfluencer accounts. And even as social-media platforms place age restrictions on users, kidfluencer accounts need only include a few words claiming to be managed by a parent in their description to post massive amounts of kidfluencer content to vast online audiences without constraint.

And kidfluencers’ audiences grow more dangerous as their accounts gain traction: in early 2024, the New York Times published an in-depth investigation into kidfluencers’ follower demographics, and the results are sobering. The proportion of kidfluencer account followers who are adult males grows “dramatically” as accounts grow in popularity.¹⁷³ While men made up approximately 35 percent of kidfluencer audiences overall, “[m]any [accounts] with more than 100,000 followers had a male audience of over 75 percent,” while some had over 90 percent.¹⁷⁴ The Times discovered men previously charged with or convicted of sex crimes among kidfluencer followers and found that some of these men participated in chat rooms with thousands of members, “treat[ing] children’s Instagram pages . . . as menus to satisfy their fantasies.”¹⁷⁵

While some parents are ignorant of the dangers posed by their children’s audiences,¹⁷⁶ others have grown “numb” trying to beat back the unending tide of suspicious followers.¹⁷⁷

“You are so sexy,” read one comment on an image of a 5-year-old girl in a ruffled bikini. “Those two little things look great thru ur top,” said another on a video of a girl dancing in a white cropped shirt, who months later posted pictures of her 11th birthday party.

For many mom-run accounts, comments from men—admiring, suggestive or explicit—are a recurring scourge to be eradicated, or an inescapable fact of life to be ignored. For others, they are a source to be tapped.

“The first thing I do when I wake up and the last thing I do when I go to bed is block accounts,” said Lynn, the mother of a 6-year-old girl in Florida who has about 3,000 followers from the dance world.

Another mother, Gail from Texas, described being desensitized to the men’s messages. “I don’t have as much of an emotional response anymore,” she said. “It’s weird to be so numb to that, but the quantity is just astounding.”¹⁷⁸

Still other parents are taking knowing advantage of this population: men in the chat rooms that the Times uncovered “frequently praise[d] the advent of Instagram as a golden age for child exploitation” and “trade[d] information about parents considered receptive to producing and selling ‘private sets’ of images.”¹⁷⁹ And among the allegations in the PRI lawsuit was a claim by one plaintiff that she accompanied Smith in mailing “several of Piper’s soiled training bras and panties to an unknown individual,” whereupon Smith told the plaintiff that “old men like to smell this stuff.”¹⁸⁰ Plaintiffs also alleged that Smith often “boast[ed] . . . about being the ‘Madam of YouTube’ ” and a “Pimp of YouTube,” and about making “kiddie porn.”¹⁸¹

Rockelle’s content and the PRI plaintiffs’ allegations paint a stark picture of the rampant sharing of invasive kidfluencer content carrying on unchecked throughout social media. For the members of the Squad, their experience working with PRI shares themes with Jennette McCurdy’s recollection of losing her childhood, autonomy, and privacy to child stardom. The Squad made countless videos centered around the group’s internal “crushes” and these videos performed much more strongly than the more innocent videos from Rockelle’s early days.¹⁸² Smith and Hill documented Rockelle’s first kiss on camera at age eleven¹⁸³ and filmed challenges among the Squad in which the minors competed to see who could kiss without stopping for the longest period of time.¹⁸⁴ The mother of two PRI plaintiffs, who is also Rockelle’s aunt, claimed that Smith sent Rockelle “a daily iPhone checklist cataloging the attention she needed to pay to her boyfriend, including sending him heart emojis [and] giving regular kisses, hugs and loving touches.”¹⁸⁵

In addition to the suggestive video content on Rockelle’s channel, the thumbnail images for the videos themselves are clearly set up to provide shock value and drive an increase in viewership. The mother of one PRI plaintiff alleged that Smith “often urged [plaintiffs] to pose more provocatively for thumbnail photo shoots,” ¹⁸⁶ and the lawsuit claimed that Smith, declaring that “sex sells,” “would frequently tell [the Squad members] to make ‘sexy kissing faces’ for thumbnails, to ‘push their butts out,’ to ‘suck their stomachs in,’ ‘wear something sluttier’ and would otherwise position [the p]laintiffs’ bodies in explicitly and sexually suggestive positions.”¹⁸⁷ As a result, minors are frequently depicted in provocative, revealing, or otherwise exploitative positions and situations in Rockelle’s thumbnails.

Image 3. Video on Piper Rockelle’s YouTube Channel, Featuring Eleven-Year-Olds¹⁸⁸

Image 4. Video on Piper Rockelle’s YouTube Channel, Featuring Eleven-Year-Olds¹⁸⁹

Image 5. Video on Piper Rockelle’s YouTube Channel, Featuring Eleven-Year-Olds¹⁹⁰

Image 6. Video on Piper Rockelle’s YouTube Channel, Featuring Eleven-Year-Olds¹⁹¹

The following YouTube video thumbnail images are merely described herein to protect the privacy of the minors featured in them:

Six teenagers (four female, two male), aged thirteen to seventeen, photoshopped to appear crowded together inside a bubble bath. The two male teenagers are shirtless, while the female teenagers appear to be wearing tank tops. The female teenager in the center has her hair arranged covering the straps of her tank top. The video is entitled “LAST TO LEAVE THE BUBBLE BATH!!” and has 2.3 million views.¹⁹²

Six teenagers (three female, three male), aged twelve to fifteen, arranged in co-educational pairs, each in one of three horizontal panels. Each female is touching her male counterpart. The male in the center panel is shirtless and his female counterpart is touching his bare torso. The video is entitled “LAST TO STOP MASSAGING THEIR BOYFRIEND WINS **Couples Challenge** 💆‍♀️💕” and has 1.9 million views.¹⁹³

One female aged eleven pictured in a cropped shirt pointing at her navel. A fake piercing is attached to her navel and a yellow circle is superimposed around her stomach while a zoomed-in image of her navel with the piercing appears in the right-hand side of the thumbnail. In the center of the thumbnail, the words “11 YEARS OLD!!” appear in large block lettering. The video is entitled “11 YEAR OLD BELLY PIERCED **PRANK** (Can’t Say No 24 Hour Challenge) 🚫👌” and has 4.6 million views.¹⁹⁴

Two females, aged eleven and twelve, wearing fake “baby bumps” designed to look like a pregnant woman’s belly with their shirts raised to expose the bumps. The video’s description includes the note, “We are only 11 and 12 so [this is] a pretty crazy challenge for us.” The video is entitled “24 Hours Being PREGNANT Challenge in PUBLIC with TWINS **FUNNY REACTIONS** 🍼🎀” and has 14 million views.¹⁹⁵

According to the Los Angeles Times’ investigation of the PRI lawsuit, PRI’s videos chronicling the Squad’s “crushes” performed the best with Rockelle’s online audience.¹⁹⁶ This data combined with the New York Times’ findings regarding dangerous followers of kidfluencers reflect the significant market that exists for kidfluencer content that is sensitive at best and criminal at worst. If, in the words of COPPA 2.0 cosponsor Senator Ted Cruz, “[e]very child deserves to grow up free of a digital footprint,”¹⁹⁷ the law is currently failing kidfluencers to a staggering degree.

Further, even content that perhaps falls short of the hallmark suggestiveness of Rockelle’s brand victimizes kidfluencers—according to some kidfluencers themselves. In July 2023, Ruby Franke, former figurehead of the now-defunct YouTube channel “8 Passengers,” made headlines when her two youngest children, then ages nine and twelve, were found emaciated and wounded.¹⁹⁸ The children had been imprisoned and suffered months of abuse by both Franke and her business partner Jodi Hildebrandt.¹⁹⁹ Franke had stopped posting videos of her children over a year before, changing the name of her channel to “Moms of Truth” and posting solemn videos alongside Hildebrandt discussing parenting strategies and religion. But in the 8 Passengers heyday, Franke posted videos of her family of eight almost daily, chronicling her six children’s lives as they grew up in front of an audience of up to two million subscribers.²⁰⁰

By 2022, 8 Passengers viewers had started to grow concerned about Franke’s behavior—while the harrowing nature of Franke’s eventual abuse would have been impossible for viewers to predict, many subscribers began to notice that Franke showed an indifference, at best, to her children’s privacy.²⁰¹ Franke spoke at length in her YouTube videos about sensitive matters in her children’s lives; over the course of several videos, she described in-depth her and her husband Kevin’s decision to send their oldest son, then fourteen, to a behavioral modification camp in the Arizona wilderness. At one point, Franke played a voicemail for viewers that her son had left her while at the camp; her son cried throughout the voicemail as he described his experience.²⁰² Another video featured the parents taking their preteen daughter to buy her first bra. After Kevin asked his preteen, “How come you’re all embarrassed?” his oldest daughter Shari spoke up off camera: “Because you’re filming her and you’re her dad?”²⁰³

2. Adapting COPPA 2.0 and the Necessity of a Right to Removal

In October 2024, Shari, now twenty-one, addressed Utah’s Business and Labor Interim Committee; Utah Representative Doug Owens, who sponsored Utah’s subsequent bill regulating kidfluencers, introduced her testimony.²⁰⁴ Shari told lawmakers that she appeared before them “as a victim of family vlogging” in hopes of “shed[ding] light on the ethical and monetary issues that come from being a child influencer.”²⁰⁵ Her words highlighted how adequate compensation is but one small component of a comprehensive regulatory scheme to protect kidfluencers; her experiences as a kidfluencer also evoke many of the same themes as Jennette McCurdy’s retelling of her time as a child actor—in particular, the sense that the compensation she received, while helpful, was simply not worth the loss of her childhood.

[Being a kidfluencer] is more than just filming your family life and putting it online. It is a full-time job with employees, business credit cards, managers, and marketing strategies. The difference between family vlogging and a normal business, however, is that the employees are all children. Children, from before they are born to the day they turn eighteen, have become the stars of family businesses on YouTube, Instagram, and most other social media platforms.

. . . .

At first, family vlogging is an alluring business that can bring high revenue. For my family, it became the primary source of income . . . . Many child influencers are paid for their work as I was, and this money has helped me in my adult life. However, this payment was usually a bribe. For example, we’d be rewarded $100 or a shopping trip if we filmed a particularly embarrassing moment or an exciting event in our lives. . . . Any payment that happens is under the table, with no paper trail. And how do we determine how much a child should make from appearing in family content? What price is worth giving up your childhood?

. . . Some of our most popular videos were when my eyebrow was accidentally waxed off, and the whole world saw a crying teenager when I just wanted to mourn in private. Or the time I was violently ill and got the leading role in the video for that day. My friends became scarce because dates were filmed and none of my friends wanted to be on camera. The camera never stops and there is no such thing as a [vacation] from filming.

. . . .

[A]s children, we do not understand the consequences of filming our lives and [having it] post[ed] for the world to see. We cannot give consent to our parents to post our lives. . . . I did not realize the impact that filming as a child would have on me now. . . .

. . . .

If I could go back and do it all again, I’d rather have an empty bank account now and not have my childhood plastered all over the Internet. No amount of money I received has made what I’ve experienced worth it. . . . I promise you that my experiences are not unique and are happening to child influencers all over Utah and the country. Let’s tackle this issue before it becomes a bigger crisis than it already is.²⁰⁶

As Shari’s words illustrate, kidfluencing is currently too unchecked and too profitable—for parents—to be safe; thus, common-sense regulations aimed at deterring parents from overworking and oversharing their children for a financial payout are critically necessary. Just as labor protections for kidfluencers would be most effective if enacted at the federal level, protective measures for kidfluencers’ privacy need federal support. COPPA presents a key opportunity to begin developing that support by empowering kidfluencers to wield greater control over their digital footprints long term. While COPPA 2.0 takes an important step forward by expanding online privacy protections for teenagers, a truly comprehensive and effective COPPA amendment would also cover kidfluencers.

Protections for kidfluencers under a new version of COPPA would make explicit the right of teenaged kidfluencers to consent (or not) to sharing their personal information in monetized content and their right to revoke that consent at any time; this system would empower teenaged kidfluencers by allying them with the social-media platforms hosting their content—regardless of a parent’s role in producing kidfluencer content, platforms would require the kidfluencer’s consent before new content could be shared. For kidfluencers under thirteen, the consent that their parents give to sharing their children’s information and to commercial use of their likeness would become provisional only and revocable by the child upon reaching age thirteen. This change would allow kidfluencers to retroactively revoke consent to personal data their parents had agreed to share and compel platforms to remove it.²⁰⁷ And in situations where groups of kidfluencers create content together, as in the case of Piper Rockelle’s Squad, a kidfluencer-focused COPPA section would provide legal scaffolding to discourage casual content-sharing to large online audiences without informed consent by every parent or teenager involved. These amendments would be a first step in giving kidfluencers the privacy protections that they currently lack.

Four of the states that now regulate kidfluencers’ compensation have also taken steps in this direction: recent laws in Montana, Arkansas, Utah, and Minnesota include provisions aimed at empowering kidfluencers to request removal of content featuring them. In particular, Minnesota’s flat ban on children thirteen and under working as kidfluencers is well worth lawmakers’ consideration both in other states and at the federal level; such a ban would have automatically made much of the Squad’s early content unlawful due to the children’s ages, while also avoiding the challenges of enforcing more nuanced regulations. Yet gaps persist—Minnesota’s law provides that “[c]ontent containing the likeness of a child must be deleted and removed from any online platform by the individual who posted the content, the account owner, or another person who has control over the account when the request is made,” either by a kidfluencer at least thirteen years old or by a former kidfluencer who is now an adult.²⁰⁸ However, the law does not provide an explicit enforcement mechanism or a means for relief for kidfluencers whose requests for removal go unheeded; it also seemingly exempts social-media platforms from responsibility entirely as it has no “effect on a party that is neither the content creator nor the minor who engaged in . . . content creation.”²⁰⁹

Meanwhile, Utah’s law does involve social-media platforms that host kidfluencer content explicitly in its removal provisions, requiring that platforms “provide a readily apparent process” for former kidfluencers who are now at least eighteen to request removal of content featuring themselves as minors.²¹⁰ But under Utah’s system, creators can still refuse to comply with removal requests. The law provides only an ex post, litigation-dependent right of action for former kidfluencers to challenge a creator’s refusal; at that point, a court would then consider the “emotional harm or substantial embarrassment” the challenged content poses to the former kidfluencer and both “the interests of the content creator” as well as “the public interest served by” that content.²¹¹ Thus, while Utah and Minnesota’s protections are certainly better than nothing, they are also critically limited; because kidfluencer exploitation is so rampant and systemic, an expensive, slow, after-the-fact system of relief available only on a state-by-state basis is simply not enough to protect them.

From that perspective, Arkansas and Montana have gone the furthest toward effecting an adequate legal solution: both states’ kidfluencer laws put responsibility on platforms, though with some caveats, to enforce kidfluencer protections, including removing kidfluencer content upon request. In Montana, creators are removed from the takedown process entirely; instead, Montana’s law triggers platforms’ responsibility to “take all reasonable steps to permanently delete” kidfluencer content as soon as former kidfluencers (who are at least eighteen) request removal.²¹²

Arkansas’ kidfluencer law is arguably even more sweeping; under that law, platforms must allow for removal requests by kidfluencers and then notify content creators of their obligation to remove the applicable content within thirty days; if creators do not do so, platforms “shall review and take all reasonable steps to remove the content.”²¹³ Unlike Montana, Arkansas does include caveats to platforms’ mandated removal, including for content that the platform finds “sufficiently newsworthy or of other public interest to outweigh the privacy interests” of the kidfluencer in question.²¹⁴ However, Arkansas also elevates platforms’ responsibilities in an additional, consequential area: its law makes it “unlawful to financially benefit from knowingly producing or distributing publicly . . . any visual depiction of a minor with the intent to sexually gratify or elicit a sexual response in the viewer or any other person.”²¹⁵ This section mandates platforms to “develop and implement a risk-based strategy to help mitigate risks related to monetization of the intentional sexualization of known minors” in a content-creation context; the structure of such strategies is at platforms’ discretion and can include monetization policies, “automated system[s] to identify and enforce against potentially problematic content and accounts,” and “[q]uality assurance processes” to monitor the effectiveness of platform’s policies in this area.²¹⁶ While the precise standard for determining whether content has “the intent to sexually gratify or elicit a sexual response” under Arkansas’ law are unspecified, much of the PRI Squad’s content could likely qualify. Thus, in addition to placing responsibility on social-media platforms to effectuate kidfluencer content removal, Arkansas also made the critical first step, at the state level, toward mandating that platforms develop ongoing procedures to monitor for at least some kinds of problematic kidfluencer content, and, ideally, prevent exploitation before it occurs.

Overall, both Arkansas and Montana’s regulatory approaches—situating platforms as the enforcers of newly-recognized kidfluencer privacy and publicity rights—represent the most effective way forward for a comprehensive federal scheme to protect kidfluencers.

IV. THE SOLUTION—FEDERAL LABOR AND PRIVACY PROTECTIONS AND REQUIRING SOCIAL-MEDIA PLATFORMS TO ENFORCE KIDFLUENCER RIGHTS

Kidfluencers need comprehensive labor and privacy protections, and because the Internet transcends the geographical limits that made state-specific labor regulations for child actors practical, adequate kidfluencer labor and privacy regulations must be set at the federal level. But once enacted, these comprehensive federal protections will require an effective enforcement mechanism—and the social-media platforms that host kidfluencer content are likely the entities best situated to moderate and enforce kidfluencer regulations. Thus, a robust set of federal kidfluencer labor and privacy protections would include an imposition of liability on platforms that feature kidfluencer content on monetized accounts (thereby creating revenue for the platform itself as well as for those managing the kidfluencer accounts) when that content is produced under conditions that violate kidfluencer laws. So far, only two states, Montana and Arkansas, have placed legal responsibility squarely on platforms to remove kidfluencer content upon request; lawmakers seeking to adequately protect kidfluencers must follow these states’ lead by pushing for federal measures that regulate kidfluencers’ labor and privacy and enable platforms to enforce those laws.

A. Section 230 and Techlash

Any conversation surrounding potential liability for online platforms based on a platform’s third-party content implicates section 230 of the Communications Decency Act of 1996 (“section 230”). Recognizing how “[t]he rapidly developing array of Internet . . . services available to individual Americans represent[s] an extraordinary advance in the availability of educational and informational resources,”²¹⁷ and how the Internet “ha[s] flourished, to the benefit of all Americans, with a minimum of government regulation,”²¹⁸ section 230 provides limited immunity to any online platform for content posted by third-party users.²¹⁹ In the nearly thirty years since section 230’s passage, its supporters have credited it with enabling some major online platforms to grow from start-ups into global giants,²²⁰ particularly with regard to the largest companies commonly referred to as a whole as “Big Tech.”²²¹ And many of those supporters have defended section 230 in the last ten years as an increasing number of detractors began voicing concerns over Big Tech’s ever-growing and seemingly unchecked power, a phenomenon dubbed “techlash.”²²²

Kidfluencers are glaringly missing from this increasingly heightened debate over the virtues and dangers of section 230 and, more broadly, about the responsibilities or lack thereof that Big Tech owes to users. Any federal proposal to impose liability upon platforms who violate laws designed to prevent kidfluencer exploitation will prompt questions about whether imposing such liability would infringe platforms’ rights under section 230 and their constitutional rights to freedom of expression. Crucially, however, section 230 itself already includes limiting language: in addition to protecting the right of platforms to “voluntarily” and “in good faith” “restrict access to or availability of material that [the platform] considers to be obscene, lewd, . . . or otherwise objectionable, whether or not such material is constitutionally protected,”²²³ section 230 dictates explicitly that it has “[n]o effect on intellectual property law.”²²⁴ Thus, new kidfluencer regulations, if modeled after this exception for intellectual property law, could be fully consistent with section 230.

B. Contributory Liability as a Basis for Platform Enforcement

In keeping with section 230’s unrestricted exception for intellectual property concerns, the Digital Millennium Copyright Act (“DMCA”), passed two years later, empowers copyright owners to compel online entities to remove infringing material hosted on their platforms or otherwise face liability.²²⁵ Under the DMCA’s “notice-and-takedown system,” online platforms can qualify for limitations on liability, known as safe harbor provisions, provided that they comply with an owner’s takedown request.²²⁶ Thus, the system enables copyright owners to safeguard their work from infringement while avoiding litigation and also ensures, via its safe harbor provisions, that online platforms are not impeded in their industrial development by these intellectual property protections. The DMCA has roots in common law contributory liability doctrine in recognizing partial responsibility on the part of online entities for infringement happening on their platform.²²⁷ In this way, the DMCA serves as an analog for a potential liability model for platforms hosting kidfluencer content produced in violation of expanded regulations.

In the kidfluencer context, online platforms also go a step further than inadvertent sharing of objectionable material—they profit directly from kidfluencer content by collecting a percentage of advertising revenue from the accounts they monetize.²²⁸ Thus, under expanded labor and privacy protections for kidfluencers, adapted from existing laws for child actors and child social-media users, platforms hosting monetized kidfluencer accounts would more than meet the criteria for contributory liability for profiting off of content produced in violation of these new regulations. Yet at the same time, platforms are also likely the most well-situated party to enact protocols that can effectively monitor and enforce updated kidfluencer laws.

Platforms can develop a more robust application process for kidfluencer account monetization requiring that adults running kidfluencer accounts to comply with the same laws regulating studios employing traditional child entertainers: obtaining permits to employ minors, tracking and reporting kidfluencers’ working hours and staying within working hour limits, providing proof of regular education and on-set supervision, and setting up protected trust accounts to safeguard kidfluencers’ compensation. Under this regulatory system, would-be kidfluencer accounts would have to meet these requirements as part of applying for account monetization, and existing kidfluencer accounts would have to provide documentation showing that they are maintaining these mandates to retain their monetized status on a continuing basis. Further, if federal protections for kidfluencers’ privacy were enshrined in an expansion of COPPA, online platforms could also be required to actively monitor kidfluencer accounts’ adherence to COPPA’s expanded mandates; specifically, platforms must obtain consent by teenagers and provisional consent by parents of children under thirteen to appear in monetized content and provide a means to revoke consent and compel removal upon request. Just as proof of continuing adherence to expanded kidfluencer labor regulations should be required for kidfluencer accounts to achieve monetization, so too should kidfluencer accounts be required to demonstrate compliance with privacy protections in order to keep gaining revenue. Online platforms already have established procedures to conform with COPPA’s existing mandates for children’s data collection that are similar to DMCA’s safe harbor criteria—in particular, COPPA includes its own self-regulatory guidelines for platforms to keep themselves eligible for COPPA’s longstanding safe harbor provisions. Thus, platforms are poised with a foundation to further develop protocols that monitor compliance with kidfluencer regulations. And despite the ongoing debate over the fate of section 230, imposing liability for online platforms in the kidfluencer context arguably need not threaten section 230, or platforms’ free expression more broadly, at all; such liability would not be without precedent given section 230’s blanket exception for intellectual property infringement, the DMCA’s subsequent imposition of the notice-and-takedown system, and COPPA’s longstanding restrictions on how online platforms interact with child users.

CONCLUSION

While some former kidfluencers like Shari Franke have explicitly called for a ban on kidfluencing entirely, such a drastic measure would be remarkably difficult, if not impossible, to achieve. At the same time, though the PRI lawsuit is unique, as of this writing, in its involvement of kidfluencers personally suing adult content producers, the PRI plaintiffs are part of an ever-growing cohort, the oldest of whom are only beginning to reach adulthood. As the first generation of kidfluencers comes of age while regulations to protect kidfluencers remain, at best, in their infancy, courts could see a rise in litigation by former kidfluencers only now independent enough to seek legal recourse. Rather than Shari’s proposed all-out ban on kidfluencing or a slew of merely reactive, post-exploitation lawsuits in the spirit of the PRI lawsuit, the more promising approach to addressing kidfluencer exploitation lies in enacting strict labor and privacy regulations at the federal level; once these regulations are created or expanded, lawmakers can then explore mechanisms for imposing liability on social-media platforms that host kidfluencer content produced in violation of these expanded regulations. If kidfluencers are to remain a fixture of the content-creator world (and they likely will, given the pervasiveness of their online presence as well as their financial value to the platforms that feature them), their career field needs to be regulated like the bona fide occupation that it is. Thus, federal law must ensure the right of kidfluencers in every state to limits on their working hours, guaranteed access to education, on-set supervision and advocacy, and compensation safeguards—the same protections that the most stringent states afford to professional child actors.

But merely applying labor regulations for child actors to kidfluencers as an overall protective measure still falls short because the nature of kidfluencing itself presents an unprecedented privacy intrusion. Child actors have built-in privacy protections by virtue of conducting their work on a set, away from home, playing characters. Their work, by and large, is only seen by people who pay to see it and is only broadcast subject to intellectual property and other licensing agreements between production companies and distributors. In contrast, when kidfluencers’ parents say, “Action!” the entire world immediately has an unrestricted window directly into their personal, private life. Thus, just as federal law must be expanded to regulate kidfluencers’ labor, COPPA should be amended to explicitly cover kidfluencers and also to make parental consent to collection of kidfluencers’ personal data provisional only—once children turn thirteen, they must be able to retroactively withdraw consent for data their parents turned over on their behalf. Under this new regulatory system, social-media platforms would be charged with monitoring kidfluencer accounts’ adherence to these requirements and suspending accounts in violation, drawing upon their existing safe harbor guidelines that currently ensure their compliance with COPPA and the DMCA as a model. This all-encompassing approach will serve to close the gaps in kidfluencer protections as quickly and effectively as possible, preventing future generations of kidfluencers from needing to wait to reach adulthood before they can pursue legal recourse after years of exploitation. It defies common sense that, as far as kidfluencers’ labor and privacy are concerned, the younger—and more vulnerable—they are, the fewer rights they have.

APPENDIX

My name is Shari Franke. My mother, Ruby Franke, is the prominent family vlogger arrested last year for child abuse. I don’t come today as the daughter of a felon, nor a victim of an abnormally abusive mother. I come today as a victim of family vlogging. My goal today is not to present any idea of a solution to this problem, but to shed light on the ethical and monetary issues that come from being a child influencer.

When children become stars in their family’s online content, they become child influencers. It is more than just filming your family life and putting it online. It is a full-time job with employees, business credit cards, managers, and marketing strategies. The difference between family vlogging and a normal business, however, is that the employees are all children. Children, from before they are born to the day they turn eighteen, have become the stars of family businesses on YouTube, Instagram, and most other social media platforms.

Utah is specifically a hotspot for family content due to the LDS culture around family and the goal to share the church with the world. We also have large families which makes family content more lucrative. Specifically, many parents film their regular family life as an online video blog, called a vlog. But I want to be clear that there is never, ever a good reason for posting your children online for money or fame. There is no such thing as a moral or ethical family vlogger.

At first, family vlogging is an alluring business that can bring high revenue. For my family, it became the primary source of income as is often the case for full time family vloggers. Many child influencers are paid for their work as I was, and this money has helped me in my adult life. However, this payment was usually a bribe. For example, we’d be rewarded $100 or a shopping trip if we filmed a particularly embarrassing moment or an exciting event in our lives. Or other times, simply going on vacation was expected to be payment enough—because most kids don’t get to go on regular and expensive trips. Never mind the fact that the child’s labor is actually what paid for the vacation or trip. There is no law in place to guarantee that child influencers get any money from their work. If a family account does not become an LLC, parents are taxed heavily for paying their children. But parents receive tax write offs for the regular clothes they wear, the gas money used to drive places, and even the houses they live in—anything that is filmed can be written off. And even after registering their business as an LLC, there is no guarantee that children will get paid. Any payment that happens is under the table, with no paper trail. And how do we determine how much a child should make from appearing in family content? What price is worth giving up your childhood?

But despite any monetary payment children may receive, don’t let this excuse the 24/7 labor that these children are subjected to. As a child, I was fully aware that I was an employee. The business was successful when I was happy or when I shared my hardships with the world. Some of our most popular videos were when my eyebrow was accidentally waxed off, and the whole world saw a crying teenager when I just wanted to mourn in private. Or the time I was violently ill and got the leading role in the video [for] that day. My friends became scarce because dates were filmed and none of my friends wanted to be on camera. The camera never stops and there is no such thing as a [vacation] from filming.

At the time, I’d tell you that I had a choice in what was filmed. But I’ve come to learn that every child influencer, in a way, suffers from Stockholm syndrome. Most child influencers would probably tell you they have full control over what is posted; but the reality is that their parents bribe and shame them into posting their most vulnerable moments. In fact, many child influencers may tell you they enjoy their work because of the monetary perks they receive, or the fun experiences that they can have. After all, what child would say no to a fun vacation or shopping spree if all they needed to do was film [a mental breakdown or] an embarrassing moment?

But as children, we do not understand the consequences of filming our lives and [having it] post[ed] for the world to see. We cannot give consent to our parents to post our lives. In any other context, it is understood that children cannot give consent—but for some reason, people think family vlogging is different. I did not realize the impact that filming as a child would have on me now. My social media became flooded with rumors of having sexual relations with my own brother, to being called a baby birthing machine at the age of thirteen. All these things have stuck with me, and I will forever live between the ages of thirteen to seventeen in many of my viewer’s minds. In addition, pedophiles stalk the internet, specifically seeking out child influencers. I promise you that the parents are aware of these predators and choose to post their children anyway.

I understand that this a big issue to tackle. I am not asking you to ban family vlogging, though that is my end goal. I also understand that as Utahns, we don’t appreciate big government overreach. But when it comes to protecting children, it should be a bipartisan issue. The only people harmed by child influencer laws are the parents exploiting their children. While this may not seem like an issue now, as child influencers in Utah continue to grow up, I foresee there will be legal crises with these children realizing that vlogging has brought severe emotional distress. Or these kids may realize they don’t have an appropriate amount of money to show for their [forced] labor. After all, how does that child know how much they should have made versus what their parents may or may not have paid them? Let’s deal with this now, before we reach that point. But even despite a good paycheck, I want to be absolutely clear that there is no amount of money can justify selling your soul, as a child, to the world. In no other industry would we justify unregulated child labor with a huge paycheck, and we should not do that here.

If I could go back and do it all again, I’d rather have an empty bank account now and not have my childhood plastered all over the Internet. No amount of money I received has made what I’ve experienced worth it. While I don’t have all the answers, nor many feasible solutions for this problem, I am proud to be one of the first child influencers in the state of Utah to speak against this issue. I don’t want people to look at me and blame my unique circumstances, with a mother in prison, to the Franke criminal case. Family vlogging ruined my innocence long before Ruby committed a crime. I promise you that my experiences are not unique and are happening to child influencers all over Utah and the country. Let’s tackle this issue before it becomes a bigger crisis than it already is. Thank you.²²⁹

99 S. Cal. L. Rev. 449

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Elinor J. Haddad*

*Executive Postscript Editor, Southern California Law Review, Volume 99; J.D. Candidate, 2026, University of Southern California Gould School of Law; B.A. Law, History, and Culture, 2016, University of Southern California. This Note is dedicated to the memory of my grandmother Nan Johnson. Thank you to my advisors Professors Jonathan Barnett and Jef Pearlman for their support and guidance; to Cristopher Swain for his unconditional encouragement; to Mark E. Haddad for his faith and wisdom; to Miranda Johnson-Haddad for her unwavering support; to Madeline Goossen and Robyn Kazemaini for their loyal mentorship; and to Kelcey Sholl, Isabella Flaherty, Nicholas Considine, and the staff of the Southern California Law Review for their thoughtful and dedicated editing.

Controlling the Narrative: Government Speech and Book Bans in the Public Library

January 2026February 2026Kelcey Sholl*

INTRODUCTION

Books bring personal joy and potential for individual growth. “The right book put in the right hands at the right time, could change the course of a life or many lives.” ¹ But access to books is not just a matter of personal enrichment: books are essential sources of knowledge, and free access to that knowledge is fundamental to a successful, thriving democracy. Michael J. Barsanti, the former director of the Library Company, the first American library, pointed out that the Founders “knew that democracies were inherently fragile and that the only way you could sustain a democracy was by having an educated populace.”²

Access to literature thus empowers individuals to engage thoughtfully in public life and fosters critical thinking and informed decision-making. Sociological studies have identified that literature introduces students to current cultural issues, which can help them develop global awareness.³ Further, when readers vicariously experience the lives of others through literature, they gain the ability to look critically at the world by engaging with other points of view.⁴ The saying “knowledge itself is power,” first published in 1597,⁵ has endured over the centuries because its truth is undeniable—and it is precisely this truth that drives some individuals in governments and communities to fight to keep certain books, and the power books hold, out of the public’s hands in an effort to control public discourse.

Libraries have become battlegrounds for partisan agendas. The concerted effort by State legislatures and citizen “activist” groups to ban certain books in schools⁶ is no longer confined to school classrooms but is spilling over into public libraries.⁷ This expansion of book bans from schools to libraries reflects an increasing desire to control public discourse and limit the availability of ideas that challenge the status quo. And by limiting access to certain books, these groups aim to control the public narrative and prevent the spread of ideas they perceive as threatening.

Efforts to ban books are rooted in fear—fear of ideas that challenge the status quo, of diverse perspectives, and of the power knowledge gives individuals to question public discourse, think critically about societal issues, and advocate for change.⁸ They are at the center of an ongoing culture war around “woke” ideology, and it is a serious constitutional concern.⁹ J.B. Pritzker, Governor of Illinois, has stated, “There are few perils to our democracy as dangerous as book bans” because “[t]hey threaten the very freedom of thought and speech that underpin our republic.”¹⁰ Book bans and censorship, therefore, threaten more than a personal freedom to read: they undermine the foundation of our democratic society by stifling an exchange of ideas that stem from the freedom to engage with diverse selections of ideas held within books.

This freedom of thought and speech is guaranteed by the First Amendment of the Constitution, which not only enshrines the rights to speak and publish, but also protects a wide range of mediums, including books, newspapers, art, music, clothing, and online content from political interference.¹¹ The U.S. Supreme Court and other lower courts have also established that the right to receive information is a fundamental extension of the right to free speech.¹² Book bans, which directly restrict access to ideas and information, therefore warrant close examination under the First Amendment.

This Note will focus on cases that have addressed book bans, including the 2025 Fifth Circuit case of Little v. Llano County and the 2024 Eighth Circuit case of GLBT Youth in Iowa Schools Task Force v. Reynolds. These cases are critically important because they are two of the first cases to make their way to federal courts of appeal amid a recent surge in litigation surrounding the proliferation of book bans. In addition, the defendants in both cases argued that library book curation constitutes government speech, which would render the government immune from First Amendment claims.

Little is particularly important due to its potential to severely limit First Amendment protections in the context of public libraries—spaces that historically play a vital role in providing access to diverse ideas and expression. The case is notable because after the Fifth Circuit panel originally ruled in favor of the plaintiffs and granted them an injunction due to the likelihood that they would prevail on the merits of a First Amendment violation, the decision was vacated to be heard en banc,¹³ with a plurality of the panel ruling on May 23, 2025, that library book curation is indeed government speech.¹⁴ The Little ruling created a circuit split on the issue, as the Eighth Circuit held in GLBT Youth that such an action is not government speech.¹⁵ The Fifth Circuit is widely viewed as one of the most conservative circuits in the nation that is willing to overturn longtime precedents,¹⁶ and in reaching its decision in Little, it has overturned Campbell v. St. Tammany Parish School Board, a thirty-year precedent that held books cannot be removed from libraries solely due to disagreement with the ideas they contain.¹⁷

With Little poised to make its way to the Supreme Court after plaintiffs petitioned the case for review, this Note will argue why the Supreme Court should grant certiorari and hold that library book curation is not government speech. The Supreme Court has not heard a book banning case since its 1982 non-binding, plurality decision in Board of Education v. Pico.¹⁸ This Note explores how the Pico decision could be strengthened. Specifically, it will advocate for distinguishing the important difference between public libraries and public-school libraries, confirming that book removal cannot be motivated by viewpoint discrimination, and providing guidance for determining when an action is motivated by viewpoint. This Note will then examine Little, arguing that the actions at issue in Little are, in fact, motivated by viewpoint discrimination. Finally, this Note will address the serious concerns and dangerous consequences of holding that library book curation is government speech—a new issue not presented in the Pico case—and will argue that the Court should clearly assert that it is not government speech.

This Note will refer to terminology including “bans” and “censors.” A book being “banned” traditionally and commonly refers to a book as being “removed from school curriculums [or] public libraries.”¹⁹ Censor, used as a verb, means to “examine in order to suppress” or “delete anything considered objectionable”; further, censor, used as a noun, is “a person who supervises conduct and morals.”²⁰ There are various methods in which a censor can censor or ban a book: (1) redaction, (2) restriction, and (3) relocation.²¹ Redaction refers to removing information within a book but keeping the book available for patrons. Restriction refers to removing the book altogether. Relocation refers to requiring a book to be shelved in a separate area that often requires permission to access.²² Overall, this Note will use the term “ban” to refer to a combination of restriction and relocation but does not focus on instances in which books have been redacted.

I. Board of education v. PICO

Although the Supreme Court has heard numerous First Amendment challenges, those addressing the restriction of access to books are limited.²³ The Court’s 1982 decision in Pico is the only opinion in which the Court has directly addressed the issue of book banning in libraries—particularly a school library.

The case revolves around a decision by the Island Trees school board to remove several books from its middle and high school libraries after obtaining a list of “objectionable” books from an organization called Parents of New York United (“PONYU”).²⁴ PONYU was a conservative organization of parents focused on education legislation in New York State.²⁵ The “objectionable” books included popular titles such as Slaughterhouse-Five by Kurt Vonnegut and Go Ask Alice.²⁶ The school board characterized these books as “anti-American, anti-Christian, anti-[semitic], and just plain filthy,” and concluded that it was the board’s “moral obligation” to “protect the children in [their] schools from this moral danger as surely as from physical and medical dangers.”²⁷ Several students in the district, led by Steven Pico, challenged the removal of these books, arguing that the school board violated students’ First Amendment rights. They contended that the desire to suppress ideas that were politically and socially controversial was a form of viewpoint discrimination.

In its 5-4 plurality decision, the Court held that a school board’s removal of books could not be based on a desire to suppress ideas.²⁸ The Court did reason, however, that school boards have significant discretion in regulating the content of materials in their schools,²⁹ although this discretion was not unlimited.³⁰ The Pico decision was narrow in several respects: notably, it lacks the establishment of a standard to determine when book removals are in violation of the First Amendment because of viewpoint-based restriction. The Court left open the vague possibility that books could be removed for reasons such as vulgarity or lack of educational value, without offering guidance on how those reasons could be distinguished from pretextual justifications. While Pico was important for affirming that students have the constitutional right to receive information, and that school boards do not have unlimited authority to remove books, it leaves unanswered questions about when book removals violate the First Amendment.

Additionally, the case leaves open questions about whether the Pico school board’s actions—which closely resemble the actions Llano County took in its public library in Little—did in fact violate the First Amendment, given that the case was remanded and then settled with no holding based on the facts. Despite these limitations, Pico is an important precedent in the ongoing debate over book banning. Lower courts that have decided on similar issues have closely followed the Pico holding.³¹ For example, in the Fifth Circuit case Campbell v. St. Tammany Parish School Board, in which a school board removed books such as Kurt Vonnegut’s Slaughterhouse-Five, the Court held that public schools cannot censor books merely because they contain controversial or offensive content.³²

Considering the increasing number of book bans in the United States, there is a growing reason for strengthening the Pico decision. This Note will argue, as detailed above, that to strengthen the holding of Pico, the Court must distinguish the important difference between public libraries and public-school libraries. Additionally, given that Pico was a plurality opinion, the Court must reaffirm that book removal cannot be motivated by viewpoint discrimination in the context of libraries, and it must more clearly define the types of actions that constitute a violation of the First Amendment principle on viewpoint-based discrimination.

II. THE FIRST AMENDMENT

The First Amendment has been greatly revered over the course of American history and is considered by many to be the most influential and important amendment in the Bill of Rights.³³ The First Amendment guarantees “the people” freedom from government intervention in their right to free speech, which ensures the exchange of free ideas.³⁴ As with all rights, the First Amendment is not absolute; however, its central purpose lies in protecting the expression of unpopular ideas.³⁵

One of the key rationales behind vigorously protecting various forms of expression, including unpopular ideas, is the “marketplace of ideas.”³⁶ The phrase was first popularized by Justice Oliver Wendell Holmes in his 1919 dissent in Abrams v. United States.³⁷ The concept is grounded in the belief that for society to progress, “truth” will emerge only from the free exchange of ideas, which necessarily includes unpopular ones.³⁸ Ensuring that society can critically engage with competing viewpoints is therefore essential for individuals to evaluate the merits of different ideas and ultimately arrive at a better understanding of these “political truth[s].”³⁹

Importantly, the marketplace only functions when there is open debate and a free flow of information.⁴⁰ Holmes argued that the government should not have the power to suppress speech on the grounds that the speech is controversial or unpopular. In his view, the government should only step in when the speech poses a clear and imminent danger to the public or national security.⁴¹ Nearly a decade after his Abrams dissent, Justice Holmes joined Justice Brandeis in the latter’s concurring opinion for the famous 1927 case Whitney v. California, highlighting why the Founders believed strongly in protecting free speech:

[The Founders] believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.⁴²

Book bans are fundamentally incompatible with Holmes’s marketplace of ideas theory and the First Amendment protections that safeguard the right to create, distribute, and access written works without government interference. Public libraries play an important role in maintaining an open marketplace of ideas. Because libraries are institutions that provide knowledge and information to “the people,” they must contain a wide range of ideas available for exploration, free from government interference based on ideological or political preferences. Unchecked government interference in the marketplace of ideas will manipulate the flow of knowledge and ensure that only certain ideas are permitted to reach “the people.”

A. Viewpoint Discrimination

Part of the First Amendment’s speech-protecting safeguards is the protection against efforts to restrict speech based on the speech’s content or viewpoint.⁴³ The government is, in nearly all circumstances, prohibited from engaging in viewpoint discrimination.⁴⁴ In 1989, the Court held in Texas v. Johnson that “[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”⁴⁵

A law is considered viewpoint-based if it restricts speech due to a specific ideology, opinion, or perspective expressed by its speaker, rather than regulating speech based on content-neutral criteria.⁴⁶ Viewpoint discrimination is particularly dangerous because if permitted, the government is able to silence certain viewpoints based solely on subjective disapproval, which undermines the foundational prohibition on government censorship of speech with which the government disagrees.

In the context of book bans, viewpoint discrimination occurs when government actors remove or restrict access to books because they disagree with the ideas those books express, rather than because of neutral concerns such as age-appropriateness or educational relevance. This often happens when books are targeted for addressing topics that some find controversial, such as race, politics, or sexuality. For example, the removal of books that discuss LGBTQ+ identities or systemic racism reflects viewpoint discrimination when those books are excluded specifically to suppress those perspectives, while books expressing more politically favored viewpoints remain available.

B. Government Speech

Despite the Court interpreting the First Amendment to prohibit viewpoint discrimination, the government-speech doctrine exempts the government from the usual First Amendment restrictions on content- and viewpoint-based speech limitations, allowing it to engage in such discrimination.⁴⁷ The concept of government speech was articulated in the 1991 case Rust v. Sullivan, even though the term “government-speech” was not utilized in the opinion.⁴⁸

In Rust, the Court upheld a government regulation that any healthcare professional receiving Title X funding was prohibited from providing information about abortion, consequently limiting what healthcare professionals were permitted to say to their patients about abortion.⁴⁹ The Court reasoned that because the government is not obligated to fund all viewpoints, and because it has the ability to select which programs to fund (here, family-planning that excluded abortion), the government’s actions would inevitably conflict with the perspectives of other programs it chooses to promote.⁵⁰ Essentially, the government should be able to communicate its own messages or express its own policies and particular viewpoints without violating the First Amendment.⁵¹ Two decades later, in the 2009 case Pleasant Grove City v. Summum, the Court identified government speech when actions are “meant to convey and have the effect of conveying a government message.”⁵² In 2022’s Shurtleff v. City of Boston, the Court applied various factors to determine if governmental action is in fact government speech: (1) “the history of the expression at issue”; (2) “the public’s likely perception as to who (the government or a private person) is speaking”; and (3) “the extent to which the government has actively shaped or controlled the expression.”⁵³

While there may be some truth to the idea that effective governance would be impossible if the government were unable to support or oppose certain viewpoints when implementing programs,⁵⁴ scholars have noted an inherent contradiction between the government speech doctrine and the First Amendment:

To satisfy traditional First Amendment tests, the government must show that it is not discriminating against a viewpoint. And yet if the government shows that it is condemning or supporting a viewpoint, it may be able to invoke the government speech defense and thereby avoid constitutional scrutiny altogether. Government speech doctrine therefore rewards what the rest of the First Amendment forbids: viewpoint discrimination against private speech.⁵⁵

Seemingly for this reason, the Court has warned that courts should “exercise great caution before extending . . . government-speech precedents.”⁵⁶

C. Minor’s Right to Free Speech

An individual’s status as a minor cannot serve as a blanket justification for censorship. The Supreme Court has recognized that minors enjoy a degree of expressive liberty under the First Amendment, although it is not as expansive as that of adults.⁵⁷ In Tinker v. Des Moines Independent Community School District, the Court famously held that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”⁵⁸ Also, in Erznoznik v. City of Jacksonville, the Court held that lawmakers cannot suppress speech for the sole purpose of shielding minors from ideas they do not find appropriate.⁵⁹

III. HISTORY AND PURPOSE OF PUBLIC LIBRARIES

Libraries have long stood as pillars of American civic life, serving the public as “forums for information and ideas.”⁶⁰ Founding Father Benjamin Franklin championed the first iteration of the American library system in 1731 with the founding of the Library Company of Philadelphia, which permitted individuals to borrow books for a fee.⁶¹ By 1800, this concept grew in popularity, and there were over forty fee-based libraries established across the United States.⁶² In his autobiography, Franklin highlighted the important role libraries play in the furtherance of democracy, noting how the Library Company “improved the general conversation of the Americans” and “made the common tradesmen and farmers as intelligent as most gentlemen from other countries.”⁶³

Today, there are more than 9,000 libraries in the United States.⁶⁴ Although libraries had long served a public civic role, the role was formally embedded in public life through tax-funded libraries, beginning in 1833, when the Peterborough Town Library in New Hampshire became the first such institution in the United States.⁶⁵ While the libraries of Franklin’s era were far from the inclusive institutions we strive for today, the heart and soul of the library’s purpose has remained and grown. Libraries serve our society as equalizers, ensuring access to knowledge for all regardless of background or circumstances while strengthening the democratic foundation of society.⁶⁶

For instance, consider libraries in the mid-19th century. As industrialization and urbanization took shape during this period, there was a significant expansion of subscription libraries and public library systems, fueled in part by demand from the working class and their employers for self-education.⁶⁷ Employers funded libraries as investments in an “efficient . . . working class,” and trade-specific libraries such as the Mechanics’ Institute opened to “stretch the mind and teach new skills.”⁶⁸ One such proponent of expanding libraries to the working class was Andrew Carnegie, who provided an employee library at one of his steel plants in Pennsylvania.⁶⁹ Carnegie became one of the richest men in the world for his role in oil, steel, and railroads, and used much of his wealth for philanthropic endeavors⁷⁰—one of which was the creation of a free public library system. He referred to libraries as “palaces for the people”⁷¹ and spent more than $56 million to create more than 2,500 libraries.⁷² He worked with local governments to establish government-funded libraries, for which he donated buildings through a grant. Localities then instituted taxes to fund the libraries’ operations and acquisitions of books.⁷³

Emily Knox, a professor at the University of Illinois Urbana-Champaign who researches censorship and library science, has stated that a guiding principle embraced by librarians is the “right of every individual to both seek and receive information from all points of view without restriction.”⁷⁴ This commitment to receiving information has been evident for more than a century. In a brief New York Times article from 1918 titled Not a Public Library Ban, the director of the New York Public Library (“NYPL”) sought to dispel any suggestion of censorship by responding to claims cited in an earlier article that a patron had been denied access to The Unpardonable Sin. He clarified that the book was available and requested identifying information about the individual who had suggested otherwise.⁷⁵ This early defense of open access underscores the long-standing dedication of libraries to resisting censorship and ensuring the public’s right to access information. Later, in response to “growing intolerance, suppression of free speech, and censorship affecting the rights of minorities and individuals,” the American Library Association adopted its first Library Bill of Rights in 1939, emphasizing that libraries are neutral spaces for the free exchange of ideas.⁷⁶ David Leonard, President of the Boston Public Library (the third largest library behind the Library of Congress and the NYPL) states that “Free to All”—as is inscribed on many of the library buildings—“encapsulates what we [are] all about.”⁷⁷

The evolution of libraries from small lending collections to vast public institutions reflects a commitment to ensuring that information remains accessible to all, without government interference or ideological gatekeeping. At their core, libraries represent a belief in the power of knowledge to uplift individuals and strengthen society. However, this very openness and inclusivity have made them a target for those who seek to control the flow of information. The ongoing battle over book removals and censorship in libraries threatens to undermine these fundamental principles that have endured since this country’s founding. The fight to keep libraries truly “free to all” is not just about books—it is about preserving the foundational freedoms on which this country was built.

IV. HISTORY OF BOOK BANS AND CENSORSHIP

The banning of books and the censorship of ideas are not new phenomena. Both have persisted throughout the course of human history. In 213 B.C., Chinese emperor Qin Shi Huang ordered various books of poetry and history to be burned;⁷⁸ Ovid, a Roman poet, was banished from Rome in A.D. 8 for his The Art of Love; in 1526 England, thousands of copies of the New Testament were burned; for more than 400 years from 1564 to 1966, the Catholic Church maintained the Index Librorum Prohibitorum—Index of Prohibited Books—that forbade Catholics from reading books by authors such as Victor Hugo, John Locke, and Jean-Paul Sartre; and from 1788 to 1820, King George banned Shakespeare’s King Lear from stage performance.⁷⁹ In modern times, book banning has steadily continued. In 1939, John Steinbeck’s novel The Grapes of Wrath was removed from a Kansas City library for being “indecent”;⁸⁰ during the Nazi regime, thousands of books including Jack London’s The Call of the Wild and numerous Ernest Hemmingway titles were banned and burned;⁸¹ in the 1980s, Beatrix Potter’s The Tale of Peter Rabbit was banned from schools in London County, England; in 1987, at a North Carolina high school, Maya Angelou’s I Know Why the Caged Bird Sings was removed from the required reading list;⁸² lastly, Toni Morrison’s Beloved has been included in the American Library Association’s top ten most challenged books of the year list seven times since 2006.⁸³ While justifications for banning books may evolve to reflect the politics and ideologies of a particular time, those who seek to control what others can read share similar claims of acting in the interest of morality, public order, or protecting children as their reasons for book banning.

Although bans are not new, “[they are] definitely getting worse.”⁸⁴ The American Library Association’s Office for Intellectual Freedom documented 4,240 unique titles challenged in 2023, making it a 65% increase from 2,571 titles in 2022.⁸⁵ This was the highest level since the organization began tracking twenty years ago.⁸⁶ Comparatively, the number of unique titles challenged in 2014, just over 10 years ago, was 235.⁸⁷ In 2020, the number of unique titles was still less than 300, but that number shot up to 1,858 in 2021 and has been growing since.⁸⁸ Between July 2021 and June 2023, PEN America reported that 5,894 books have been banned across 41 states.⁸⁹ The trend is most prominent in “Republican-leaning” states—Florida and Iowa had the most book bans from 2023 to 2024⁹⁰—reflecting an increasingly organized and politically motivated effort to control access to literature.

The motivations behind banning books often stem from deeply rooted psychological and sociological factors—“an act of control[] driven by . . . fear.”⁹¹ Emily Knox, who studies book banning and censorship, reported that communities try to ban books because words have power, and words can change who an individual is.⁹² Throughout history, censorship has been a tool for controlling narratives.⁹³ Economic and social turmoil often lead to widespread efforts to restrict the rights of marginalized individuals,⁹⁴ and silencing their voices by restricting their access to books is a powerful tool for accomplishing this goal. There is a desire to preserve societal norms, and restricting books keeps them away from readers whom censors fear might be “changed” by their content.⁹⁵ Encountering ideas that may conflict with an individual’s deeply held beliefs can create a mental discomfort that many avoid by challenging books that challenge their worldview.⁹⁶ “Activist” groups pushing for parents to challenge books often use the term “indoctrination” to describe book content they object to—instead of the word “education”—to emphasize that their worldview does not comport with the worldview expressed by the challenged book.⁹⁷ Because books introduce unfamiliar and challenging ideas that may be uncommon in certain communities or regions, the differing views and lives represented in the pages of the challenged book are often seen as a threat.⁹⁸ Thus, individuals justify restricting these ideas as a desire to protect readers from radical ideas.⁹⁹

V. PROLIFERATION OF BANS AND LEGISLATION

The rise in book bans has become a significant national issue, sparking debate regarding parental rights and minors’ First Amendment rights. As of 2022, more than one-hundred bills have been proposed for various forms of book banning at the state level.¹⁰⁰ Florida’s HB 1557, also known as the “Parental Rights in Education” law and referred to by opponents as the “Don’t Say Gay” law, restricts discussions of sexual orientation and gender identity in certain grade levels.¹⁰¹ With respect to book banning, the Florida law increases the ease with which parents, or any resident, can object to books used in classrooms and school libraries.¹⁰² It requires school districts to house an “objection form” on the school district’s homepage website, and directs districts to remove books objected to as “pornographic” within five days of receiving an objection.¹⁰³ Charlotte County school district, acting on the law, prohibited books with LGBTQ+ characters in all schools with limited exceptions for high schools; Charlotte’s superintendent and school attorney stated, “These characters and themes cannot exist.”¹⁰⁴ Two years after the enactment of this law, Florida was required through a settlement to provide direction to schools regarding the scope of the legislation; subsequently, it has been clarified that the law does not apply to libraries in which no educational instruction is taking place.¹⁰⁵

In addition, Texas’ HB 900, the READER Act, attempted to enact stringent guidelines on educational materials by requiring school book vendors to rate books that contain “sexually explicit” or “sexually relevant” content in order to restrict access to these books.¹⁰⁶ Specifically, the Act required book publishers, bookstores, and internet-based book retailers to rate books in active use that they sold to public schools.¹⁰⁷ These independent, private entities received minimal guidance on how to implement the ratings despite the fact that books labeled by the sellers as “sexually explicit” would consequently be removed from public school libraries.¹⁰⁸ In May of 2024, the Fifth Circuit in Book People v. Wong upheld a district court injunction that held the READER Act to be unconstitutionally vague and compelled speech.¹⁰⁹ The legislation in Florida and Texas have served as models for similar measures in other states such as Arizona, Missouri, Tennessee, and Idaho, signaling a broad trend.¹¹⁰

Much of the book banning debate has focused on public school libraries and academic curriculum choices, but there has been a growing trend in regulation and litigation regarding public community libraries. For instance, Llano County in Texas and Pasco County in Florida have begun expanding book banning efforts from school libraries to community libraries. For example, in September of 2024, Pasco County removed 130 children’s books with LGBTQ+ content from its community library.¹¹¹ In January of 2025, South Carolina introduced a bill in its state senate requiring libraries to certify each quarter that they “do not offer books or materials in children’s, youth, or teen sections that might be considered sexually inappropriate” in order to receive state funding they need.¹¹² In April of 2024, Idaho passed House Bill 710 to require that books deemed harmful to children be relocated to “adult only” areas in public community libraries,¹¹³ causing some rural libraries to respond by prohibiting children’s access to libraries altogether because their libraries are too small for a separate section.¹¹⁴

Critics of the laws that restrict access to books contend that they infringe upon First Amendment rights, including the right to receive information. They argue that these regulations constitute censorship and limit readers’ exposure to diverse perspectives. The debate centers on whether a state government’s interest in shielding children from content it deems inappropriate outweighs a broader societal commitment to the free exchange of ideas.¹¹⁵ States that are traditionally more liberal are responding to this increase in bans by enacting “anti-book ban” laws for both school and community libraries.¹¹⁶ California, Illinois, Minnesota, Maryland, and New Jersey have all enacted protective laws,¹¹⁷ and in June of 2023, Illinois became the first state to enact legislation that outlaws book bans.¹¹⁸ The Illinois law requires libraries to create formal policies or adopt the American Library Association’s Bill of Rights that asserts books could not be removed because of partisan disapproval.¹¹⁹ More states are beginning to introduce protective measures. In February of 2025, for example, a bill was introduced in the New York State Assembly to prohibit libraries from banning books based on “partisan or doctrinal disapproval.”¹²⁰

This proliferation of legislation and regulation has received federal attention, with hearings in both the House Committee on Oversight and Reform in 2022 (entitled “Free Speech Under Attack”) and in the Senate Committee on the Judiciary in 2023 (called “Book Bans: Examining How Censorship Limits Liberty and Literature”).¹²¹ Supporters of states’ legislation and regulation limiting access to books argue that governments have the authority to regulate access to content deemed inappropriate and to protect children from material they consider harmful.¹²² These arguments often frame the issue as one of parental rights.¹²³ In the 2023 Senate Judiciary hearing, the committee heard from five “witnesses” with varying points of view on the issue. Nicole Neily, one of the hearing’s witnesses and President of “Parents Defending Education,” stated before the committee that “families’ concerns about books in schools is not ‘book banning.’ ”¹²⁴ She indicated that their concern with “age appropriate[ness]” is not “radical,”¹²⁵ and stated that the debate around book banning “is a manufactured crisis that distracts from families’ valid concerns about the quality of their children’s education and whether students are safe from drugs, assaults, and bullying in schools today.”¹²⁶ Neily, betraying her own argument that this is about children’s safety and not her own disapproval of LGBTQ+ content, concluded, “Please listen to the concerns of families who want their children to learn basic grammar, rather than be policed on pronouns.”¹²⁷

On the other hand, those against the book ban legislation and regulation argue that it is a violation of First Amendment rights and a threat to democracy. Illinois Secretary of State Alexi Giannoulias spoke about his initiation of House Bill 2789, which proposed that Illinois libraries will not receive funding if they ban books:

This legislation is important because both the concept and the practice of “banning books” contradicts the very essence of what our country stands for and what our democracy was founded on. It also defies what education is all about: [t]eaching our children to think for themselves. If the book banners care to, they can go to our libraries and check out the Federalist Papers, the U.S. Constitution and even Supreme Court cases on the First Amendment. What they will learn is that our democracy depends on the “marketplace of ideas.” That “marketplace of ideas” will not function if we ban books—because we will be banning ideas and preventing our children from thinking for themselves and having the ability to debate [and] learn [and] understand different perspectives.

[ . . . ]

I could never imagine a world where I would tell another family what books their kids should or should not be allowed to read.¹²⁸

This surge in book bans is an extension of broader culture wars currently gripping the nation, particularly around issues of “wokeism,” so-called “traditional” family values, and the targeting of transgender individuals by conservative politicians.¹²⁹ These bans reflect a systematic effort to reshape public discourse by restricting access to materials that address topics such as LGBTQ+ identities, systemic racism, or gender diversity. On January 24, 2025, the U.S. Department of Education’s Office for Civil Rights announced the elimination of its book ban coordinator position, which had been established in June of 2023 to investigate complaints regarding school removals of books claimed to be “racially divisive.” Along with eliminating the position, the department dismissed eleven related complaints, stating that the concerns over book bans were a “hoax” and a “false narrative” perpetuated by then-President Biden.¹³⁰ Additionally, on February 7, 2025, the Department of Defense (“DoD”) announced that it would be reviewing books “potentially related to gender ideology or discriminatory equity ideology topics” in DoD-funded schools located in seven states and eleven countries.¹³¹ The DoD removed books from these school classrooms and libraries, including titles such as Freckleface Strawberry written by actress Julianne Moore about a young girl learning to accept her freckles and No Truth Without Ruth, a biography about Justice Ruth Bader Ginsburg.¹³²

One of the activist groups leading the charge on book restrictions is Moms for Liberty.¹³³ Moms for Liberty was founded in 2021 and began by speaking out against mask mandates and COVID vaccination requirements in schools. It later shifted gears to focus on the ways in which topics related to LGBTQ+ individuals, racism, and religion are presented in schools.¹³⁴ The group is similar to that of PONYU discussed earlier in regard to the Pico case, and the Southern Poverty Law Center has compared Moms for Liberty to “pro-segregationist parent groups that flourished in the wake of . . . Brown v. Board of Education.”¹³⁵ The group’s influence, for example, led to a parent in South Carolina sending a list of ninety-seven books to her child’s school district for removal in early 2024. The list of books was obtained from a site called “Book Looks,” which was created by a former member of Moms for Liberty to enable parents to “find out what objectionable content may be in [their] child’s book before they do.”¹³⁶ The school librarian was subjected to numerous threats from parents who wanted to turn the librarian in to the police and the FBI for distributing pornography, despite the school having a program in which parents could fill out an opt-out form so their children would not be able to access the book.¹³⁷ Similarly, in the year preceding the enactment of the Idaho House Bill 710 discussed earlier, the Idaho Falls Library received twenty-one complaints from a group called “Parents Against Bad Books.”¹³⁸

Although framed by supporters and activist groups as measures to protect children and uphold parental rights, these laws reflect fears that exposure to certain ideas undermine “traditional” family values. Critics argue that these actions amount to censorship, threaten and violate First Amendment rights by limiting access to diverse perspectives, and politicize public spaces like libraries that are supposed to function as neutral fora for freedom of thought and expression. Art Spiegelman, a Pulitzer Prize winner and author of widely banned book Maus, a graphic novel depicting his father’s survival of the Holocaust, says of the current situation, “It [i]s a culture war that [i]s totally out of control.”¹³⁹

VI. PROLIFERATION OF LAWSUITS

There have been numerous legal challenges to legislation and book removals in schools and libraries. However, this Note focuses on two cases that have specifically raised government speech arguments and have gone before the appellate courts: the Eighth Circuit case of GLBT Youth in Iowa Schools Task Force v. Reynolds and the Fifth Circuit case of Little v. Llano County. Notably, a newer case, PEN America Center, Inc. v. Escambia County School District, has been ongoing in front of the Northern District of Florida, in which the school district is also advancing a government speech argument.¹⁴⁰ This represents a possibility for this argument to now make its way through the Eleventh Circuit.

A. Eighth Circuit: GLBT Youth in Iowa Schools Task Force v. Reynolds

In 2023, Iowa enacted Senate File 496 (“SF496”), a contentious law that reshaped policies governing public school libraries and classrooms.¹⁴¹ The legislation introduced significant restrictions and prohibitions such as requirements to remove books deemed age-inappropriate from school libraries.¹⁴² Two lawsuits emerged in response to SF496. The first was brought by GLBT Youth in Iowa Schools Task Force, a group of students who asserted that SF496 violated the First Amendment. The second lawsuit was brought by Penguin Random House, authors, and educators, who raised similar First Amendment violations. Because “both cases related to the same legislation . . . and had considerable overlap such that the cases would benefit from joint administration,” the District Court for the Southern District of Iowa consolidated the cases.¹⁴³

In response to the plaintiffs, the State argued that the removal of books from school libraries constituted government speech, which is not subject to First Amendment viewpoint-neutrality requirements when the government speaks on its own behalf.¹⁴⁴ The District Court then issued a preliminary injunction on SF496 due to the likelihood that the law violated the First Amendment.¹⁴⁵ On appeal, the Eighth Circuit Court of Appeals overturned the district court’s injunction but, importantly, rejected the application of the government speech doctrine while noting that the Supreme Court has not held that library curation is government speech.¹⁴⁶ Also, applying the Shurtleff factors, discussed earlier in Section II.B, the Eighth Circuit stated that the public does not typically associate this activity with government action, as the library usually hosts a broad and diverse set of materials instead of a curated set of government-endorsed messages.¹⁴⁷ Additionally, Iowa has not historically exercised significant control over the selection and removal of books from libraries, and the Supreme Court has directed the use of caution when extending the doctrine of government speech.¹⁴⁸

B. Fifth Circuit: Little v. Llano County

In August of 2021, three Llano County, Texas, residents, Rochelle Wells, Eva Carter, and Jo Ares, filed complaints with Judge Ron Cunningham, head of Llano County Commissioners Court, which supervises the Llano County library system, about children’s library books that they found to be “pornographic and overly sexual.”¹⁴⁹ Wells, in order to prevent others in the community from checking out books she deemed unacceptable, checked them out continuously for months. Cunningham then directed the librarian to remove these books from Llano County library shelves.¹⁵⁰

Several months later, another community member sent Cunningham a list of books that she found objectionable, calling them “pornographic filth.”¹⁵¹ Cunningham further instructed the librarian to remove these additional books. In total, the library removed seventeen books by the end of 2021, and these books became accessible only if an individual asked the librarian for them. However, the books were not listed in the catalog system, making it impossible to know if the books were available for checkout.¹⁵²

In 2022, the library board dissolved, and Cunningham appointed Wallace and Wells to the new board. The new board prohibited the Llano County librarian from attending the board’s meetings and required her to obtain approval for any new books she sought to include in the library.¹⁵³ Subsequently, plaintiffs brought suit in the United States District Court for the Western District of Texas and alleged that their First Amendment rights had been violated because the book removals occurred based on the defendants’ disagreement with the content of the books.

In March of 2023, Judge Robert Pittman of the United States District Court for the Western District of Texas issued a preliminary injunction, concluding that the plaintiffs were likely to succeed on the merits of their First Amendment claim based on viewpoint discrimination. The Court mandated the return of the book titles in question and prohibited further removal of books while the case proceeded.¹⁵⁴ The decision was initially affirmed by a 2-1 Fifth Circuit panel but was quickly vacated and ordered to be heard en banc.¹⁵⁵ Notably, the panel dissent endorsed the government speech argument.¹⁵⁶

Oral arguments before the en banc court took place in September of 2024 and opened with the lawyer for Llano County, Jonathan Mitchell, arguing that the Court should overturn Campbell v. St. Tammany Parish School Board, previously discussed in this Note’s Section I. Campbell held that the constitutionality of removing books from a library hinges on the substantial motivation of officials involved. Specifically, Campbell ruled that decisions driven by a desire to suppress certain viewpoints or ideas violate the First Amendment. This holding closely aligns with the plurality’s reasoning in Pico.

Mitchell and the County argued that library decisions to acquire, retain, or remove books are choices that should be categorized as government speech—and thus should be exempt from restrictions on viewpoint discrimination.¹⁵⁷ Drawing on Moody v. NetChoice LLC,¹⁵⁸ the County compared the library’s book collection to “speech that belongs to the curator,” asserting that the inclusion or exclusion of particular materials is expression.¹⁵⁹ They compared the content selected in libraries to a curated broadcast or a social media page, which is deemed expressive activity.¹⁶⁰ The defendants argued that by exercising discretion over library content, the government is communicating its own message about what is appropriate for the community it serves. Under this framework, the decision regarding the removal of books would be insulated from a First Amendment challenge.

Plaintiffs countered that holding library curation to be government speech would “recast government censorship as protected affirmative speech” and “expand the government’s power to extinguish controversial ideas.”¹⁶¹ They argued that the act of curating library books is not government speech because it does not meet the Supreme Court’s test from Shurtleff v. Boston. Specifically: (1) the county has not historically censored books based on viewpoint; (2) the public does not perceive the government to be speaking because the books provide for conflicting views; and (3) the county has not engaged in viewpoint curation for every book in the library.¹⁶²

The en banc panel overruled Campbell and a plurality held that library book curation is government speech in their final ruling on May 23, 2025.¹⁶³ On September 9, 2025, the attorneys for plaintiffs, now notably including Elizabeth Prelogar, the former Solicitor General of the United States, filed a petition for a writ of certiorari.¹⁶⁴

VII. BOOK BANNING CASES ARE HEADED TO THE SUPREME COURT

The Supreme Court should grant certiorari in Little because of the unresolved legal questions stemming from Pico, the steady rise in legislation targeting book removals, and the newly divided circuits on government speech. Pico established that school boards cannot remove books solely because they disagree with their ideas, but the fractured nature of the ruling left room for interpretation—especially regarding the distinction between school and public libraries. Now, with a circuit split on whether library book curation constitutes government speech, the need for Supreme Court clarification is even greater. The Fifth Circuit’s decision in Little directly contradicts the Eighth Circuit’s ruling in GLBT, which held that library curation is not government speech. If courts allow the government to claim that book removals are a form of government speech, it will fundamentally reshape public libraries by transforming them from spaces of free inquiry into spaces of government-endorsed messages. Given the implications for First Amendment rights and the increasing legal battles over library censorship, the Supreme Court will likely need to resolve these critical constitutional issues.

A. Decades-Old Nonbinding Supreme Court Plurality Opinion In Pico, Revisited

As previously discussed in Section I, Pico involved the removal of several books from a public school library, in which the school board argued that the books were “anti-American” and “vulgar.”¹⁶⁵ In its plurality opinion, the Court held that there was a genuine issue of material fact as to whether the school board’s removal of the books violated the First Amendment.¹⁶⁶ Justice Brennan, joined by Justice Marshall and Justice Stevens, held that the books could not be removed solely because of the government’s disagreement with the ideas contained in the books. A plurality of the Justices also reaffirmed that students have a right to receive information protected by the First Amendment, even in a school setting.¹⁶⁷ However, the Pico decision left room for discretion on the part of the schools, in that they could remove books deemed educationally unsuitable. As in, removal would be permissible if it was based on educational suitability rather than ideological disapproval.

The Justices differed on the legal standard for determining when a school could remove books. Justice Blackmun concurred in the judgment but did not agree that the right to receive information was a necessary consideration.¹⁶⁸ Justice White concurred in the judgment only and would have held that there was a genuine issue of material fact without identifying the viewpoint limitation on school boards.¹⁶⁹ As mentioned throughout this Note, the fractured nature of the Pico ruling—in addition to the rise in legislation on book banning—indicates that lower courts will now need clarification from the Supreme Court on the standards of book removal in school and public libraries.

B. The Supreme Court Has Not Yet Differentiated Between School Libraries And Public Libraries

School libraries and public libraries both play essential roles in supporting free speech, but they differ in scope when it comes to book removal challenges. Public libraries are community institutions that serve people of all ages and provide access to a vast array of viewpoints and information. In contrast, school libraries function within an educational setting, where materials are evaluated based on curricular goals and suitability for students. Because of this distinction, parents have a greater influence over school libraries as they have a recognized right to direct their children’s upbringing.¹⁷⁰ However, this parental right does not extend to controlling what is available in a public library, where individuals—children and adults alike—retain personal autonomy over what they choose to read.

Public libraries operate on the principle of voluntary access. Unlike schools, in which students may be required to engage with certain materials, public library users have complete discretion over what they may choose to check out. If a parent does not want their child reading a particular book, they can simply prevent their child from borrowing it without imposing that decision on the rest of the community. This opt-in nature of public libraries makes government-imposed book removals particularly troubling, as these removals do not merely reflect an effort to structure a child’s education, but also limit access to information for everyone in the community.

Pico narrowly addressed book removals in school libraries, but the differences between school and public libraries demand a more nuanced legal approach. The dissent in Pico expressed concerns about a school board’s ability to maintain control over the educational environment, but that is not relevant here.¹⁷¹ How might the dissent have ruled had this been a community library? The fact that Pico left these unresolved questions highlights the need for clearer guidance from the Supreme Court on how book removal standards apply to public libraries. Furthermore, the Supreme Court should uphold an even stronger determination against viewpoint discrimination than it did in Pico, given the dangers posed by an expanded understanding of the government speech doctrine, as discussed in Section D below.

C. Llano County’s Book Removals Are Viewpoint Discrimination

Although Pico held that books cannot be removed from school libraries solely because of disagreement with the ideas they contain, the case was remanded for further proceedings, and subsequent proceedings never determined whether the school board’s actions constituted viewpoint discrimination. After the remand, the school board faced pressure from 1,200 parents who petitioned to end the case and return the books to the library shelves.¹⁷² In response, the board reinstated the books and implemented a parental notification requirement for checking out these books. However, the Civil Liberties Union challenged this notification policy, arguing that it violated laws protecting confidentiality of library records.¹⁷³ Facing continued public pressure, with some parents even leaving the district over the issue, the school board eventually abandoned its efforts and restored all books to the shelves.¹⁷⁴

Book bans are unconstitutional when they are based on viewpoint discrimination.¹⁷⁵ The Supreme Court, however, has yet to articulate a clear standard for identifying when book removals cross the constitutional line. Supporters of book bans often claim that they are motivated by concerns about age appropriateness, but modern challenges overwhelmingly focus on specific themes and perspectives—particularly those related to race, gender, and sexuality¹⁷⁶—suggesting they are driven by ideological opposition rather than neutral educational concerns. For instance, in Georgia, a challenger criticized a book featuring a same-sex couple, stating, “Books like this [are] where teens get the idea that [same-sex relationships are] okay”¹⁷⁷—a clear expression of disagreement with the viewpoint that same-sex relationships are acceptable. Similarly, in Tennessee, a branch of Moms for Liberty opposed a book detailing the story of civil rights activist Ruby Bridges, written by Bridges herself, as teaching “anti-American values.”¹⁷⁸ In Idaho Falls, most of the twenty-one complaints that its public library received in 2023 were for books that dealt with LGBTQ+ characters or race.¹⁷⁹ LGBTQ+ books are frequently mischaracterized as being about sex, even when the content is entirely age-appropriate—such as the children’s picture book And Tango Makes Three, which tells the true story of two male penguins raising a chick together.¹⁸⁰

The rapid rise of book bans over the past several years is directly connected to the broader political efforts used to suppress discussions of race and gender. This trend is underscored by Donald Trump’s executive orders targeting diversity, equity, and inclusion (“DEI”) initiatives, which frequently incorporate books on these subjects. DEI programs are being vilified as promoting “antiwhite racism” and undermining “national unity.”¹⁸¹ Schools that receive federal funding are being threatened with withholding of those funds if they do not abandon their DEI programs.¹⁸² The 2025 DoD directive to remove books from DoD schools based on “gender” and “discriminatory equity” ideologies makes explicit the political-and viewpoint-based motivations behind the legislation targeting books in schools and libraries. The directive, echoing the Trump administration’s hostility toward DEI, is obviously rooted in content- and viewpoint-based discrimination. It is difficult to justify restricting access to children’s picture books about a girl with freckles or the life of Ruth Bader Ginsburg as anything but obvious partisan viewpoint censorship.

The same viewpoint-based targeting is evident in Little v. Llano County, making it an ideal case for the Supreme Court to clarify when book removals constitute unconstitutional viewpoint discrimination. The books removed from Llano County libraries overwhelmingly focus on LGBTQ+ identities and racial equity. County officials referred to these books as “pornographic filth” and “disgusting.” Similar to the school board defendants in Pico who used a list of books from an outside source to recommend books for removal because they disagreed with the contents, here, the defendants in Little created a list of books they “personally opposed,” including books that had been identified by an outside party as about “politics, race, sexuality, and gender.”¹⁸³ These books included Caste: The Origins of Our Discontents, They Called Themselves the KKK: The Birth of an American Terrorist Group, Being Jazz: My Life as a (Transgender) Teen, and Freakboy, among others.¹⁸⁴

Several factors in Little make clear that the book removals were based on viewpoint discrimination. First, the targeted books overwhelmingly dealt with themes that have been politically contentious, indicating the removals were not neutral but ideological. Second, officials ignored standard library weeding procedures and instead relied on personal opposition and lists of objectionable books obtained from outside sources to justify removals.¹⁸⁵ Third, internal emails show that librarians did not agree with several of the removals and thought they might be “illegal.”¹⁸⁶

The Supreme Court has long recognized that the government cannot suppress speech simply because it disagrees with its message. Yet, the rise of book bans driven by ideological opposition demonstrates the need for a more explicit and enforceable standard. Little may present the Court with an opportunity to provide that clarity and reaffirm that viewpoint-based censorship in public libraries is unconstitutional. The Court must make clear that the specific targeting of LGBTQ+ and racial equity themes is a constitutional violation, and that not all books containing these themes are inherently age-inappropriate.

D. The Dangerous Rise of the Government Speech Argument

An issue that was not raised in the Pico case, but remains a serious and dangerous argument gaining prominence, is that of government speech. Should the Supreme Court grant certiorari to Little, affirm the Fifth Circuit’s decision to overrule Campbell, and hold that library book selection is government speech, the outcome of Little could have profound consequences. Holding that library book curation is government speech would fundamentally distort the marketplace of ideas, which is a fundamental building block of our country’s democracy.

As mentioned, the Eighth Circuit held in GLBT that library book curation is not government speech. Therefore, the Fifth Circuit’s plurality holding in Little that library book curation is government speech and its overturning of Campbell, which closely aligns with the Pico holding, make it very likely that the Supreme Court will grant certiorari. In the original Fifth Circuit opinion that was vacated, dissenting Judge Stuart Kyle Duncan wrote, “There is a simple answer to the question posed by this case: [a] public library’s choice of some books for its collection, and its rejection of others, is government speech.”¹⁸⁷ This split with the Eighth Circuit and divergence from Pico, the latter of which has been adhered to across circuits, requires clarification from the Court.

Seventeen states signed onto an amicus brief on behalf of Llano County endorsing defendants’ argument that library book curation is government speech. The states wrote, “The county’s decisions over which books to offer its patrons in its public libraries, at its own expense, are its own speech.”¹⁸⁸ In April of 2024, Florida made the government speech argument in PEN America v. Escambia County School District, in which a district judge held that whether library curation decisions are government speech is an unsettled matter.¹⁸⁹ Florida, one of the states to sign the amicus in Little, traveled to the Fifth Circuit to make the argument for government speech after Llano County yielded some of its speaking time to Florida.¹⁹⁰ In a social media post, The Florida Freedom to Read Project alerted followers to “pay attention” to the Little case; it stated that Florida would keep presenting this argument “until they find a friendly court.”¹⁹¹

Legal scholars have raised concerns about the ambiguous scope of the government speech doctrine and its potential to undermine First Amendment rights.¹⁹² Cases such as Little and GLBT are prime examples illustrating these scholars’ justified fears. The consequences of states characterizing library book curation as government speech would turn spaces dedicated to the free exploration of ideas into “silos of partisanship.”¹⁹³ Government speech is particularly serious in this context because, in the case of libraries, there are few other places where individuals can access such a breadth of ideas freely. Libraries are physical manifestations of the marketplace of ideas, where people can go to find information on nearly any topic they might think of with little to no cost. Allowing the government to pick and choose what ideas line the shelves based on viewpoint is directly removing those ideas from the marketplace. For instance, while Rust v. Sullivan (previously discussed in Section B of this Note) allowed the government to restrict healthcare professionals from putting information about abortion into the marketplace, families could still turn to other sources—like libraries—to find information on abortion. For many members of the public, the library is the last stop to gather information on these politically restricted ideas.

Libraries are unique in that they offer a wide array of materials, often without any cost or significant barriers to access. Bookstores and online research can be expensive, and in many areas, libraries are the only option for communities to obtain information. For seniors or those who might not be tech-savvy, the library is a place where they can easily access ideas that may not be readily available elsewhere. Calling library book curation government speech is therefore particularly risky because it grants the state power to limit the flow of information in spaces dedicated to public knowledge, thereby undermining the core purpose of that space.¹⁹⁴

Further, library book curation is not government speech as analyzed by the test in Shurtleff. The Little plaintiff pointed out that Llano County has not historically engaged in viewpoint-based censorship and echoed GLBT in that the government “has not historically spoken by censoring books at public libraries.”¹⁹⁵ Libraries have historically stood in contrast to censorship, providing the public with free access to ideas.¹⁹⁶ Defendants, in response, focused on “curation,” which they argued has “always been the prerogative of government employees.”¹⁹⁷

The Little defendants’ argument is wrong. Curation does not equal government speech in the context of libraries. One aspect of a librarian’s job duties is to review the library collection. Many libraries, including those in Llano County, follow a standardized process of “Continuous Review, Evaluation and Weeding” (“CREW”).¹⁹⁸ Librarians are tasked with removing—weeding—books deemed outdated or duplicated. This removal is subject to neutral criteria, most typically by following “MUSTIE” factors.¹⁹⁹ MUSTIE stands for: (1) “misleading” (factually inaccurate); (2) “ugly” (worn out and unfixable); (3) “superseded” by a new edition (or better source); (4) “trivial” (of no literary or scientific merit); (5) “irrelevant” to the needs and interest of the community; and (6) “elsewhere” (material can be easily borrowed elsewhere).²⁰⁰

A book satisfying one factor alone would likely not be weeded; instead, it would require meeting a combination of these factors for removal. In fact, Llano county required two MUSTIE factors to be met before removal.²⁰¹ Libraries engage in MUSTIE practices to weed out certain library books, and of course, such weeding involves making some selection choices because libraries do not have unlimited physical space. However, MUSTIE relies on relevance, demand, and educational value to make removal decisions and include various (and likely opposing) viewpoints. These choices are not made to represent a government-endorsed message. As Little plaintiffs pointed out in their brief, “any regulation of speech could be reframed as the government” if choices about quality are considered government messages.²⁰²

Second, the public does not perceive the government to be presenting a message or speaking through the combination of books they are presented with in a library. Libraries are meant—and understood by the public—to facilitate access to a diverse range of perspectives, not to endorse or suppress ideas. As plaintiffs in Little argued, the public does not perceive the government to be endorsing the messages of each book in the library.²⁰³ They point to the Eighth Circuit decision in GLBT to highlight that libraries contain books with a “wide range of conflicting views”²⁰⁴ and that it is not possible for the public to believe the government is endorsing them all. Otherwise, the government would be “babbling prodigiously and incoherently.”²⁰⁵ Defendants in Little countered this argument by insisting that the issue in GLBT is not about the endorsement of the speech within the library books, but rather about the status of the person who selected them (i.e., a government employee or a private citizen).²⁰⁶ They argue that it is “inconceivable” that anyone would attribute this speech to the actions of a private citizen.²⁰⁷ While it is likely true that the public would view a librarian as acting in their scope of employment, rather than acting as a private citizen, defendants’ argument is dangerous and greatly expands the reach of the government speech doctrine, contrary to the U.S. Supreme Court’s warning in Matal v. Tam that government speech should be applied with caution.²⁰⁸

The mere fact that government employees are involved in a process does not automatically transform the process into one of government speech. For example, contrary to Little’s majority opinion, just because museum curators choose exhibits does not mean their actions are viewed and understood by the public as government messaging.²⁰⁹ Shifting the debate from the public perception of government endorsement of a message to that of the identity of the selector would give the government near immunity from First Amendment violations. When the government issues a press release or policy, it is widely recognized as an official message because it comes from a government employee and explicitly communicates the government’s position. Unlike an official government-issued report or press release, a library’s collection does not serve as a direct communication of any particular message.²¹⁰ Further, when a person checks out a book from the library, they do not view the book as a message from the government. Library patrons do not understand the selection of books in a library to be a message from the government saying, “we think this is a good book” or “we approve of this book.” While it is understood that the librarians have selected the book for inclusion in the library’s collection, the message is not the librarian’s personal endorsement of the viewpoints contained in the book, but rather of the ideas presented by the author. The library’s role is not to act as a representative for government messages, but to facilitate access to diverse ideas. Thus, the public sees the speech within the book as belonging to the author, not as a government-endorsed message.

Third, libraries do not extensively engage in viewpoint discrimination when selecting books for their library shelves. Little plaintiffs correctly argue that the weeding process that libraries engage in is based on a neutral set of criteria and is not an effort to remove books based on viewpoint.²¹¹ The plaintiffs analogized this work to that of maintenance, not intentional control of specific content.²¹² Again, here, the defendants argue that this is based on the public status of the librarian’s employment, stating that the selection and removal decisions “will always be shaped and controlled by . . . government employees.”²¹³ Defendants missed the point here. Per aforementioned reasons, there is no viewpoint discrimination involved in the weeding process and the point of weeding is not to shape a particular expression.

The Court should make it unequivocally clear that the curation of public library collections by professional librarians is not government speech. Librarians are trained professionals guided by ethical standards. Their role in selection and curation of books is fundamentally about serving the public’s needs by providing them with unrestricted access to diverse perspectives. Libraries follow the principles of the Library Bill of Rights, which was created in response to censorship. Librarians are not curating a government message; they are curating a space where individuals can “seek and receive information from all points of view without restriction.”²¹⁴

CONCLUSION

The First Amendment serves as a foundation of democracy, protecting access to information and the free exchange of ideas. Throughout the nation’s history, it has been vigorously defended as a means of fostering an informed citizenry. Democracy thrives when individuals can explore, challenge, and expand their understanding of the world around them through exposure to wide-ranging perspectives. This right is not reserved for adults alone—children, as future stewards of our society, are also entitled to these fundamental protections.

Community libraries embody the First Amendment’s principles in their purest form. Libraries are not merely collections of books, but institutions dedicated to providing neutral spaces where people of all backgrounds can engage with a variety of perspectives, free from political bias or government interference. Politicizing libraries by framing the curation of their collections as government speech would fundamentally undermine the heart of the marketplace of ideas exemplified and provided by libraries.

The Supreme Court’s plurality decision in Pico rightly recognized that students have a constitutional right to access information. However, given the increasing frequency of book bans and the evolving legal landscape, the Court must reaffirm and strengthen the Pico decision. Librarians are trained professionals who adhere to ethical standards, and their role in curating books is centered on ensuring unrestricted access to knowledge, not advancing political agendas. Treating library curation as government speech would open the door to political ideological control over library collections and erode public trust in government institutions.

Upholding the First Amendment’s protection over access to library books is essential to maintaining a society that values open inquiry and free expression. Libraries are not arenas for partisan agendas, but sanctuaries for knowledge and intellectual growth. As the Foundation for Individual Rights and Expression put it, “Regardless of whether book banning campaigns target the Bible or Judy Blume, politicized efforts to restrict access to information cannot be reconciled with the Founders’ faith in the free exchange of ideas and our national commitment to freedom of expression.”²¹⁵

Editor’s Note:

After publication of this issue, the Supreme Court denied certiorari in Little v. Llano County, making it easier for government officials in Texas, Louisiana, and Mississippi to engage in viewpoint discrimination with respect to the removal of books from public libraries.

99 S. Cal. L. Rev. 203

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Kelcey Sholl*

*Editor-in-Chief, Southern California Law Review, Volume 99; J.D. Candidate 2026, University of Southern California Gould School of Law; M.A. 2016, California State University, Northridge; B.A. 2013, California State University, Long Beach. I thank my advisor, Professor Rebecca Brown, for her support and guidance; Professor Rebecca Brown and Professor Lee Epstein for the opportunity to serve as a research assistant, which sparked my interest in the First Amendment; and the editors of the Southern California Law Review for their hard work and thoughtful suggestions on this Note.

Artificial Incompetence? Unpacking AI’s Shortcomings in Contract Drafting and Negotiation

January 2026January 2026Carly Snell*

INTRODUCTION

This Note was inspired by my time as a data center procurement contracts intern during the summer after my first year of law school. In this role, I assisted contract analysts and attorneys with their procurement of space in data center facilities by contracting with data center suppliers. I regularly reviewed contract redlines from suppliers, identified non-market or disadvantageous terms in those contracts, and suggested changes for the next “turn of the redlines,” or when the company would return the contract to the supplier with new edits to the document. An impactful conversation with my manager about artificial intelligence’s potential as a useful tool in a transactional lawyer’s toolbelt inspired a deeper dive into the benefits and drawbacks of applying artificial intelligence (“AI”) to the contract drafting, redlining, and negotiation space—ultimately leading to the development of this Note.

After the internship concluded, I began my second year of law school. While the most noticeable change upon my return was that I was no longer a first-year student, I also immediately observed a greater emphasis on AI in legal education than before. My law school offered a course on AI’s legal applications, peers used AI to supplement their studies, and professors emphasized the importance of mastering AI during law school, as it would be an essential tool in future legal practice. Similarly, students at other law schools honed their negotiation skills against AI chatbots¹ and even developed their own AI-driven case briefing technology.²

As with the implementation of any new technology, however, there are some points of contention that arise when applying AI to the law—especially in the context of contract drafting, formation, and negotiation. This Note covers four main challenges to applying AI to contract drafting: (1) contract law principles, (2) equity concerns, (3) accuracy issues, and (4) legal profession challenges. Additionally, this Note presents the results of a novel empirical study designed to test AI technology’s tendency to discriminate when tasked with negotiating a contract on behalf of different types of clients. Interestingly, ChatGPT, a popular AI chatbot,³ appears to favor corporations and nonprofit organizations over individuals when acting as a negotiation assistant.⁴ This finding suggests that the excitement surrounding AI’s potential uses in the legal field⁵ is premature, and professionals should hesitate to implement this technology in contract drafting and negotiation until algorithmic discrimination is adequately addressed.

Part I of this Note introduces the historical development of AI technology and its rise to stardom that began with the public release of ChatGPT in 2022.⁶ Part I then describes early applications of AI technology to the contracting space, such as Spellbook, Harvey, and LegalSifter.⁷ After that, Part I discusses fundamental contract law principles, such as mutual and constructive assent, that AI contract drafting may not readily align with.⁸ Finally, Part I concludes by orienting the reader with basic legal profession concepts, such as the lawyer’s duties of confidentiality, communication, competence, and diligence.⁹

Part II introduces several illustrative examples of AI in contract drafting and negotiation that pose unique questions about the key differences between human and AI-driven contracting. These differences make it difficult to apply existing contract law to AI and raise important concerns about AI’s potential to discriminate when contracting and negotiating on behalf of different clients.¹⁰ Part III of this Note expands upon AI’s usurpation of traditional contract law principles. Fundamental contract law concepts, such as the “meeting of the minds” required to form a valid contract, do not readily apply to wholly AI-driven contracting.¹¹ Principally, AI’s application in contract drafting and negotiation can present novel complications when determining whether or not the parties to a contract mutually agree on its terms. These issues persist regardless of whether a party performs some of its obligations under an AI-driven contract and despite the controversial doctrine of constructive assent.

Part IV covers the equity concerns that arise when applying AI technology to contracting. In general, applications of AI technology in the contracting space raise concerns about “algorithmic discrimination”—AI’s tendency to produce discriminatory outputs as a consequence of being trained on tainted data.¹² AI in contracting also raises ethical issues regarding enforcement of fully automated contracts. A pervasive issue in the AI space is ensuring proper alignment between an AI model’s goals and those of its operator.¹³ Given that AI technology regularly suffers from misalignment problems, would it be ethical and equitable to enforce contracts drafted by these models? Another ethical dilemma that arises in the AI contracting context concerns legal liability and accountability if a party is injured by an AI-formulated contract. If harm results from an AI-drafted contract, who should be held accountable for these harms? Between the AI model itself, its designer, its user, and other parties, there is no readily apparent answer. Finally, the implementation of AI in contracting—a setting that involves a plethora of sensitive information—presents serious data privacy and security concerns.¹⁴

In Part V, this Note reviews the accuracy issues apparent in current and potential applications of AI technology. Simply put, AI technology can behave unpredictably and output inaccurate results known as “hallucinations.”¹⁵ In the litigation context, several lawyers, including Michael Cohen’s attorney, have recently been sanctioned or publicly admonished for citing fabricated cases generated by ChatGPT in their filings.¹⁶ In the contracting space, in which exact language and minor details can govern the legal meaning of an agreement, AI’s tendency to hallucinate can cause major problems.

Part VI presents the challenges to the legal profession that arise when using AI technology in contract drafting and negotiation. For example, overreliance on AI technology to draft and negotiate contracts may violate an attorney’s professional duties of competence and diligence—much like the actions of the lawyers who cited fabricated cases in their court filings. Overreliance may also violate an attorney’s professional duty of communication if they cannot explain their reasoning for a recommended course of action to a client due to reliance on ChatGPT in their decision-making. Additionally, since AI models operate as “black boxes,” their use may raise concerns about duty of confidentiality violations if client information is input into these systems without proper safeguards.¹⁷

Part VII discusses the empirical findings that resulted when the author “hired” ChatGPT to assist various types of fictitious clients with negotiating a standard commercial real estate lease. These research findings suggest that ChatGPT discriminates against individual clients by tending to recommend renegotiation less often and to a smaller degree when advising individual clients than when assisting corporate or nonprofit clients. These findings have immense equity implications for contract drafting and negotiation in an AI-driven world, as AI models that disfavor individual clients may exacerbate existing market power or resource inequalities between individuals and more sophisticated corporate or nonprofit clients.¹⁸ Finally, Part VIII discusses some strengths and potentially useful applications of AI technology in legal work in light of this Note’s theoretical discussion and empirical findings. Part VIII posits that, although AI technology excels at summarization,¹⁹ concerns about its ability to exercise discretion and judgment suggest that it may be best suited for administrative tasks.

I. A CRASH COURSE IN AI AND RELEVANT LEGAL THOUGHT

A. What Is Artificial Intelligence and How Can It Contract?

There is no widely accepted definition of what constitutes artificial intelligence, which is partially a byproduct of how technological capabilities have rapidly improved in recent years.²⁰ To oversimplify, computer programs were historically classified as artificial intelligence if they successfully mimicked human rational thought.²¹ An early example of this concept is the Turing test for artificial intelligence, which was developed by the “father of modern computer science,” mathematician Alan Turing.²² The Turing test assesses how well a machine can imitate human thought and behavior via a competition that Turing called the “Imitation Game.”²³ In the game, a machine and human compete by answering questions asked by a human interrogator; at the end of the game, the interrogator must identify which competitor is a human and which is a machine.²⁴ If the interrogator gets it wrong—i.e., says that the machine is the human—then the machine is thought to demonstrate human-level thought and intelligence.²⁵

This Note utilizes a relatively expansive definition of artificial intelligence that is reminiscent of the Turing test. For the purposes of this Note, artificial intelligence is any computer software program that demonstrates human-like behavior or intelligence. As discussed below, the focal point of artificial intelligence in this Note is large language models, which are some of the best modern examples of AI that would likely pass Turing’s test for artificial intelligence, given their language-based design and applications.²⁶

Artificial Intelligence’s Rise to Prominence: The “AI Boom”²⁷

Artificial intelligence has taken the public consciousness by storm since the release of ChatGPT, OpenAI’s text-generating chatbot, in November 2022.²⁸ ChatGPT is an AI model trained to engage in natural language conversations, which means that when users interact with ChatGPT, it converses with them by generating textual responses comparable to that of a human.²⁹ The model’s successful imitation of human-sounding speech captured the public’s imagination,³⁰ prompting increased interest in potential applications of AI technologies from the general public³¹ and software developers³² alike.

ChatGPT can complete a variety of academic tasks in a matter of seconds, such as writing essays, generating ideas, and answering mathematical problems.³³ It is no surprise, then, that students from primary school to collegiate grade levels were some of the model’s most prevalent initial users, asking ChatGPT to write papers and complete homework assignments on their behalf.³⁴ Students’ widespread use of ChatGPT to complete assignments led many schools and universities to initially ban the AI model altogether,³⁵ although it was difficult, if not impossible, to enforce AI bans—especially outside of the classroom.³⁶ A new industry of tools meant to detect the use of AI in students’ writing emerged to combat this issue, but their accuracy remains widely disputed.³⁷

Although initial widespread applications of ChatGPT were somewhat rudimentary in nature, such as students’ use of the tool to complete assignments,³⁸ OpenAI’s introduction of the model to the public sphere was instrumental in prompting other AI developers to invest in the creation and public release of their own large language models (“LLMs”).³⁹ After witnessing OpenAI’s successful launch of ChatGPT, prominent tech industry leaders such as Google and Meta immediately sought to turn AI technologies into tangible, profitable products that they could sell to individuals and companies.⁴⁰ Although these major technology companies had already been developing (and, in some cases, even released, to little success⁴¹) their own AI technologies before November 2022, ChatGPT’s successful public launch prompted an expansion of the AI industry like never before.⁴² By the following spring, a flurry of new LLMs had emerged on the market: Meta’s LLaMA model, Google’s PaLM-E, and even OpenAI’s newest iteration of its LLM: GPT-4.⁴³

In essence, large language models are AI models designed to interact with and produce language.⁴⁴ “Large” refers to the increasing trend to train these models on large quantities of data stored in massive data sets that are usually housed in collocated data centers.⁴⁵ While ChatGPT, LLaMA, PaLM-E, and GPT-4 are all generally considered LLMs, much like AI more broadly, a concrete definition of what constitutes a large language model remains an open question.⁴⁶ There are no exact parameters for how large an AI model must be or how it must interact with language in order to be categorized as an LLM.⁴⁷

On the other hand, LLMs are generally considered to be a subset of generative AI.⁴⁸ Generative AI is defined as artificial intelligence capable of producing new creations, such as graphic images, text, and audio, based on training data inputted into the model.⁴⁹ Therefore, generative AI enables a user to generate substantial quantities of work product with minimal effort by prompting a generative AI model and letting it create content for them based on the query. This is partly why ChatGPT became wildly popular in a short period of time⁵⁰—and why the generative model caused concerns about students using it to complete homework and other assignments on their behalf.

Beyond their avocational applications as homework helpers⁵¹ and joke writers,⁵² LLMs are being increasingly used by industry professionals to improve and expand the potential of their products and services.⁵³ For instance, Amazon Web Services implemented an externally facing AI chatbot on its Amazon.com retail site designed to handle returns, provide shipment tracking information, and generally improve the site’s customer service capabilities⁵⁴ (albeit the chatbot has garnered mixed reviews⁵⁵). Similarly, in 2024, Target Corporation launched an internally facing generative AI model, called Store Companion, to assist with employee training, store operations management, and general problem-solving tasks.⁵⁶ Meanwhile, social media platforms such as Instagram use AI models to filter content and craft feeds that are better personalized to users’ individual preferences.⁵⁷

Early Applications of Artificial Intelligence to Legal Contracting

Naturally, the ever-increasing implementation of LLMs in a variety of businesses, industries, and settings includes applications in the legal field as well.⁵⁸ For example, AI has already been used to create legal workflow companions with suites of legal skills,⁵⁹ contract lifecycle management software programs,⁶⁰ and contract redlining and drafting assistants.⁶¹ A simple Google search for AI contracting services yields a plethora of (interestingly named) AI-powered software programs that purport to assist an attorney with redlining (e.g., Harvey,⁶² Lawgeex,⁶³ Superlegal,⁶⁴ Ivo,⁶⁵ Screens,⁶⁶ and Spellbook⁶⁷) or managing (e.g., Evisort,⁶⁸ Ironclad,⁶⁹ Sirion,⁷⁰ and LegalSifter⁷¹) their legal contracts. Even companies that operate widely used legal research databases, such as LexisNexis and Thomson Reuters, have created and marketed their own generative AI-powered legal assistants.⁷²

Legal professionals are generally excited about new and potential future applications of AI to the legal world.⁷³ Many believe the technology will increase efficiency in a time-intensive industry by synthesizing documents and reducing the time a human attorney needs in order to perform certain legal tasks.⁷⁴ Some hopefuls even view AI as infallible—capable of outperforming humans, whose work is prone to errors, because AI can craft perfectly completed and accurate work product.⁷⁵ Finally, AI is thought by some to make legal services more affordable and accessible to the general public⁷⁶ by reducing the number of billable hours an attorney must dedicate to any given task, enabling individuals to access legal services without hiring a human attorney, or both. In fact, Utah and Arizona have already implemented pilot programs that allow non-lawyer entities, such as AI chatbots, to provide legal services, and Washington may be the next state to institute such a program.⁷⁷

Despite this enthusiasm about AI, the immediate application of LLMs to the legal space has not been without its challenges. Some attorneys have wrongfully used LLMs to shirk their responsibilities by asking AI models to conduct legal research or write briefs on their behalf.⁷⁸ This practice has resulted in massive sanctions and fines for attorneys who cited “bogus” cases that were fabricated by ChatGPT in documents that they later submitted to a judge.⁷⁹ Furthermore, as discussed later in this Note, issues regarding lawyers’ ethical and professional duties, algorithmic discrimination, AI’s inaccuracies, and the subversion of traditional contract law principles also arise when large language models are applied to the legal field.

B. A “Meeting of the Minds” Regarding Contract Law Theory

An orientation into the foundational principles underlying contract law theory is needed before one can take a proper deep dive into the applications of AI in contracting. A great place to start is the traditional contractual theory of mutual assent, colloquially known as the “meeting of the minds.”⁸⁰ Mutual assent is one of many requirements that must be demonstrated for a court to hold that a given contract is legally valid and enforceable.⁸¹ “Meeting of the minds” refers to the idea that both parties must mutually agree to the terms of a contract in order for the agreement to be legally binding.⁸² That is, the parties’ minds must, in a sense, “meet in the middle” at the moment when the contract is formed. For that reason, mutual assent may not be found when one or both of the parties to a contract entered into the agreement based on a misunderstanding or a mistake of law or fact.⁸³ Intuitively, this makes sense; it would not be good public policy to bind people to a contractual agreement if they did not fully understand the obligations and consequences they allegedly agreed to when the agreement was executed. Beyond equity justifications, it may also be inefficient to hold a party accountable for obligations that they did not intend to undertake and may not be equipped to fulfill. Relatedly, to create a binding agreement, the parties to the contract must specifically mutually assent to the material terms of the contract.⁸⁴ Without a “meeting of the minds” between the parties to any given contract regarding the essential provisions of the agreement, the contract is invalid and not legally binding on the parties.

In some instances, courts have imputed assent to a party based on their conduct even if they did not explicitly agree to or approve of the terms of an agreement.⁸⁵ This doctrine is known as “constructive assent,”⁸⁶ and it is common among online transactions.⁸⁷ For example, if a user of an online webpage affirmatively acknowledges the page’s terms of use by clicking an “I accept” or “I agree” button without actually reading the agreement, the user is usually found to have constructively assented to the terms of the agreement despite not actually being aware of its contents.⁸⁸

Although many people make light of the fact that nobody ever reads various websites’ terms of use or, more notably, Apple’s Terms and Conditions,⁸⁹ constructive assent is no laughing matter. In these types of situations, constructive assent can be used to essentially waive the traditional contract theory requirement of a “meeting of the minds,” instead holding individuals accountable for the contracts that they sign even if they do not fully understand or have knowledge of the terms that they allegedly agreed to.⁹⁰ Unsurprisingly, the doctrine of constructive assent is controversial—especially its application to consumer contracts⁹¹ and form contracts more broadly.⁹² Further, the ethics of constructive assent are hotly debated among scholars, with some arguing that applying constructive assent to a contested contract unfairly disadvantages the weaker party (e.g., the consumer) to the benefit of the dominant party (e.g., the retailer) whose greater market power enables them to force the weaker party to consent to the dominant party’s preferred terms.⁹³

C. Attorneys as Ethical and Professional Fiduciaries

Another important factor to consider when analyzing the potential applications of AI to the contracting space is the ethical and professional complications that arise due to attorneys’ special fiduciary duties to their clients. In general, attorneys are held to a higher standard than those who work in many other professions.⁹⁴ Specifically, attorney conduct is governed by each state’s bar association, many of which have adopted the Model Rules of Professional Conduct—the generic rules promulgated by the American Bar Association.⁹⁵ The Model Rules serve as a fundamental guideline for attorney conduct by prescribing various professional and fiduciary duties to attorneys, such as client confidentiality, competence, diligence, and communication.⁹⁶ The Model Rules also address various topics relating to an attorney’s practice—like conflicts of interest, the formation of an attorney-client relationship, the scope of one’s representation, and how to interact with unrepresented persons⁹⁷—and explain how model attorneys should approach these issues. Importantly, the Model Rules detail practices that constitute misconduct, like engaging in dishonesty or fraud, violating the Model Rules of Professional Conduct, or committing a criminal act.⁹⁸ For the purposes of this Note, it is important for one to keep the Model Rules of Professional Conduct in mind when considering how an attorney may use AI technology in drafting or negotiating contracts, as certain applications of AI may subvert the underlying goals that the Model Rules were designed to support in more traditional applications.

II. ILLUSTRATIVE EXAMPLES

Several ethical, practical, and theoretical questions arise when one considers various applications of AI to contract drafting, formation, and negotiation. To better illustrate the issues that arise from applying AI to the contracting space, consider the following numbered examples and the questions they raise regarding their implications for the contract law principles and legal profession concepts that we have discussed:

Example #1: Laypeople Using AI to Draft a Contract⁹⁹

Two laypeople (i.e., not attorneys) are doing business together. Interested in summarizing their deal in a written form, they “draft” a contract by asking ChatGPT to do so for them. Once ChatGPT has drafted the contract, the two parties both read and sign the contract, despite not understanding the agreement’s legalese or terms. Later, something goes wrong, and the contract’s validity and enforceability are disputed.

Was there a “meeting of the minds,” or mutual assent, here?

Is this a case of AI-assisted human contracting, or was this effectively an entirely AI-created contract?

Is the contract enforceable?

Should society want the contract to be enforceable?

Example #2: AI as a Contract Drafting Tool for Attorneys¹⁰⁰

As is industry practice, a lawyer in a corporate law firm normally uses a standard form contract from prior deals as a starting point when drafting new contracts. However, for a particular deal, she decides to use ChatGPT to draft the initial form contract instead.

Is this an example of AI as a tool that assists humans in contract drafting, or is this a wholly AI-drafted agreement?

Does this distinction have important implications for the contract’s validity and enforceability?

Is there any significant difference between this attorney using AI to create a form contract or pulling a precedent contract out of her firm’s database?

Would this amount to a breach of the attorney’s professional duties of competence, diligence, or anything else?

Example #3: Human Error Versus AI-Drafted Terms

Overwhelmed with his busy workload, a lawyer mistakenly inserts a clause in a contract he is drafting for his client. Both his client and the other party to the contract sign the agreement; neither party nor the attorney knows at the time the agreement is executed that the accidental provision is included in the contract.

Is the extra provision in the agreement enforceable (i.e., did the parties mutually assent to the term)?

Is this scenario any different from if AI completely drafts and executes a contract without humans involved in the contracting process?

How are these two examples reconciled in terms of mutual assent? Are they the same, or fundamentally different in any way?

Example #4: AI Automatically “Agreeing” to Online Terms

Annoyed with websites’ many Terms of Service and Cookies pop-ups, an inventor creates an AI-driven “ad blocker” software that automatically clicks through and “agrees” to these pop-ups on the software user’s behalf so that they never have to see them again.

Would this constitute the user’s assent to various websites’ Terms of Service?

Does the answer to this question depend on how long the user has had the software, or whether they knew or reasonably should have known that specific websites had Terms of Service or Cookies pop-ups?

* * *

There are two possibilities when applying AI technology to contract drafting and negotiation: (1) AI effectively functions as an assistant, aiding humans with their contracting, and (2) fully automated decision-making, in which AI completely takes over contracting, from start to finish, with no humans involved in the process. Under either scenario, four categories of problems arise when implementing AI in contract drafting and negotiation: the subversion of contract law principles, equity concerns, accuracy issues, and legal profession challenges.

III. AI’S SUBVERSION OF CONTRACT LAW PRINCIPLES

If AI functions as a mere contract drafting and negotiation assistant, mutual assent concepts would apply in the same manner that they do for purely human-conducted contracting. An underlying principle of the mutual assent requirement for a valid contract is the notion that the parties to a given contract must understand the terms of the agreement and have a “meeting of the minds,” or mutual agreement, that they find the terms acceptable.¹⁰¹ If AI technology merely assists an attorney with drafting or negotiating a contract, this does not affect the portion of the dealmaking process that mutual assent concerns. The only point in time that is relevant for mutual assent is when the parties come to a consensus that the contract’s terms are agreeable and subsequently execute the agreement.¹⁰² By that point in time, the drafting and negotiating phases of the process are complete (and, truthfully, long gone)—the agreement is in its final drafted form and will not undergo further redlines or revisions. Thus, the implementation of AI as a mere assistant in the contracting and negotiation process is not within the timeline or contextual scope that mutual assent concerns. AI’s use as a contracting assistant is therefore akin to any personal opinions the drafting attorney may have (outside of their thoughts and duties as a fiduciary of their client) regarding the deal at hand—i.e., irrelevant to questions about mutual assent.

While some may argue that the cyclical drafting, redlining, and negotiation process drives the parties to a contract toward the ultimate goal of mutual assent at the end of the contracting cycle, it is not a necessary component of mutual assent that agreements are modified and negotiated by the parties. If one party presents a complete agreement to another party, who signs it without criticizing its contents or insisting on revisions, it is still a valid contract. Furthermore, in many instances, an attorney drafts and negotiates on behalf of their client, who signs the final contract without a comprehensive legal understanding of the negotiations and redlines that were made during the dealmaking process. This is arguably like Example #1 in Part II, in which the two laypeople used AI to draft a contract that they then signed. Although the individuals did not negotiate between themselves, mutual assent was arguably satisfied because the humans—not ChatGPT—assented to the agreement at the end of the contracting process.

On the other hand, if contracting is entirely managed by AI—without humans involved in the process—then the contract law requirement of mutual assent is not satisfied. Arguably, if the laypeople in Example #1 did not understand the contract because ChatGPT performed a substantial portion of the legal lift for them (which is possible, considering that they did not understand the AI-drafted agreement’s legalese or terms), then the mutual assent requirement may not be satisfied because the contracting process was effectively completed without human involvement. Example #4 details a more abstract example of this concept. In Example #4, the inventor’s software “agrees” to websites’ terms of use on its users’ behalf. In this situation, the human user never sees, let alone reads, the terms of service that they allegedly agreed to through the AI-driven software. Although some might argue that there is mutual assent because a person who installs the software knows that it will “agree to” the terms on any site that the person visits, this argument does not hold up to pragmatic scrutiny. Given how often and extensively people surf the Internet, it is highly likely that, over time, the person would not know which websites had pop-up advertisements or terms of use that the AI bot “agreed” to on their behalf, let alone the content of those agreements.

Therefore, the contract law requirement of mutual assent goes unsatisfied when AI fully takes over the contracting process. This flaw in solely AI-executed contracting becomes even more apparent when considering contracts that involve multimillion- or multibillion-dollar transactions, fundamental changes in a company’s structure or dealings, or changing the client’s financial or business practices in any substantial way. Without providing notice of these changes to the client and securing their informed assent to new and material contractual terms, solely AI-driven contracting is unlikely to satisfy traditional contract law principles.

Some might argue that a party’s performance of its obligations under a fully AI-driven contract would justify its validity and waive the mutual assent requirement, much like the traditional contract law enforcement principles surrounding the Statute of Frauds.¹⁰³ However, a fully automated contracting process differs from classic applications of the Statute of Frauds—such as when a party denies a prior verbal agreement, claiming that they never agreed to the deal because no written proof of it exists.¹⁰⁴ Rather, if AI completely drives the contracting process, then the parties to a contract would likely never be aware of, let alone read, the AI-drafted and executed agreement. Due to this disconnection, it is highly unlikely that the parties would completely perform their obligations under the agreement—simply because they would not know what their obligations are. Even if the parties were generally aware of their performance obligations (e.g., because the AI model contracted an extension of an existing purchase agreement between a purchaser and supplier), they would still not know the specifications of the agreement to a high enough degree for public policy to justify holding them to the transaction.

Furthermore, although some may argue that the doctrine of constructive assent can waive the mutual assent requirement in the purely AI-driven contracting setting, this argument is specious. Constructive assent is a highly controversial doctrine in its current limited uses, such as form contracts.¹⁰⁵ Scholars have raised particular concerns about constructive assent eliminating the need for mutual assent in online transactions, such as clickwrap agreements,¹⁰⁶ because the doctrine can infer an Internet user’s assent from their decision to click “I agree”—regardless of how “ill-informed and not well considered” that decision might have been.¹⁰⁷ Therefore, because constructive assent is thought by many to subvert traditional contract law theory, especially in online transactions, it provides a weak justification for waiving the mutual assent requirement in a purely AI-driven contracting setting.

Therefore, the distinction between AI as a contracting assistant and wholly AI-driven contracting carries significant contract law implications. In Example #2 in Part II, the legal difference between an attorney using a precedent contract from prior deals and relying on an AI-generated form contract is crucial, even though practicing attorneys may see little to no practical difference between the two. As AI technology continues to advance, the line between human-driven and AI-driven contracting will increasingly blur, raising questions about contract validity, enforceability, and an attorney’s professional obligations. Whether AI serves merely as a drafting tool or takes on a more autonomous role could have far-reaching legal consequences.

IV. EQUITY CONCERNS

A. Algorithmic Discrimination

Algorithmic discrimination occurs when ostensibly impartial AI technology produces discriminatory results because it was trained on tainted inputs.¹⁰⁸ Put more simply, algorithmic discrimination is a perfect example of “Garbage In, Garbage Out.”¹⁰⁹ Proponents of AI argue that even if algorithmic discrimination occurs, automated decision-making is preferable to human decision-making because humans are biased.¹¹⁰ However, algorithmic discrimination can perpetuate and amplify existing biases or stereotypes in an AI model’s training data, with the dangerous added implication that the tainted model appears facially objective and neutral.¹¹¹ Furthermore, because of their reliance on human inputs, algorithms will arguably never be fully bias-free and nondiscriminatory, but perpetually flawed as “partially human.”¹¹² Additionally, due to its highly advanced pattern-detection abilities, AI technology has the potential to develop new forms of discrimination by extracting patterns from its inputted data that humans alone would not have been able to detect.¹¹³

Algorithmic discrimination is also concerning because current legal theories do not supply satisfactory remedies for discrimination by AI systems.¹¹⁴ For example, imagine that an online job search site, such as LinkedIn, uses an AI-driven algorithm to “match” employers with potential interview candidates on the site by recommending certain user profiles to employers.¹¹⁵ If a user believed that the algorithm discriminated against them in choosing not to suggest their profile to employers, they would have limited options to seek legal redress. In the employment space, discrimination claims are separated into two categories: (1) disparate treatment and (2) disparate impact.¹¹⁶ Disparate treatment is focused on combating explicit discrimination, which requires a finding of intent.¹¹⁷ In a traditional, non-AI setting, explicit discrimination may be demonstrated by a qualified job candidate who was denied employment by a firm that refused to hire her by proving that the refusal was based on one of the candidate’s protected characteristics, such as race or gender.¹¹⁸ Conversely, to claim disparate treatment in the case of an AI algorithm, the disgruntled LinkedIn user would have to demonstrate that the algorithm had the intent to discriminate, which may be incredibly difficult, if not impossible, to prove in the case of a nonhuman entity. Thus, algorithmic discrimination is likely thought to be a product of unintentional or incidental discrimination.

Alternatively, disparate impact claims do not require the plaintiff to prove discriminatory intent;¹¹⁹ rather, the doctrine considers whether there is a disparate impact on members of a protected class, any business necessity for the impact, and a less discriminatory alternative means of achieving the same result.¹²⁰ Therefore, given the aforementioned difficulty of ascribing any particular cognitive motivations to an AI model, disparate impact discrimination is the only potential mode of existing discrimination law that

might provide legal redress for members of protected classes who experience algorithmic discrimination in the employment context.

In the contracting space, algorithmic discrimination has the potential to create disastrous consequences. If an AI model is trained on discriminatory data or its algorithm is improperly weighted by its human developers, it may tend to favor one type of party over another, such as men over women.¹²¹ This bias may then prompt the AI model to negotiate more favorable deals for certain parties than it would for others. This potential for AI to act as a discriminatory advocate may exacerbate existing inequalities, especially if the model’s reliance on tainted training data causes it to reinforce biases that disproportionately harm certain groups. Particularly sensitive communities include women, racial or ethnic minorities, and people who are socioeconomically disadvantaged. In the contracting setting, where every word in a contract has an important implication for the meaning of the agreement, a tainted AI model could selectively include unfavorable terms—or simply choose terms that are not the most favorable—in an agreement when “hired” by a party that the model’s data disfavors. The individual who experiences discrimination by receiving the “short end of the stick,” or undesirable contract terms, would likely never know that they were discriminated against by the model they used to contract. Even if the disadvantaged individual later became aware of the discriminatory term selection, it is likely that they would not have the ability or resources to advocate for themselves.

Furthermore, the contracting setting presents a multitude of consequential and important situations in which a person’s livelihood depends on the degree of favorability they are able to negotiate for themselves in a given contract. For example, in an employment contract, the starting salary, amount of paid family leave, and inclusion of any noncompete provisions may have huge implications for a prospective employee’s financial stability and future wellbeing. If an AI model poorly negotiates on a potential employee’s behalf, that potential employee may experience a lower quality of life than they would have otherwise—and if the reason for AI’s poor performance is discriminatory conduct, these disadvantaged outcomes will only exacerbate existing inequalities in our society.

B. Ethics of Enforcing Automated Deals

Another serious concern that arises when using AI in contracting is the ethical dilemma of deciding when to enforce completely automated deals. If we get to the point in which contracting is an entirely AI-driven task, do we feel comfortable holding humans accountable for the deals that an AI model entered into on their behalf?

A critical consideration when determining accountability in this circumstance is AI (mis)alignment. Broadly speaking, direct alignment refers to the ability to program an AI system so that it pursues goals consistent with the goals of its operator.¹²² There are a plethora of difficulties in ensuring proper direct alignment, including (1) determining the operator’s goals, (2) conveying those goals to the AI software, and (3) getting the AI model to correctly translate those goals into actions.¹²³ It is often incredibly difficult for an AI user to overcome these challenges, and efforts to do so sometimes cause AI programs to take unexpected actions that result in adverse consequences.¹²⁴

In the contracting context, holding the user of an AI contracting software to an agreement that the AI model drafted on their behalf can have especially inequitable consequences. Much like Example #3 in Part II, in which the human attorney mistakenly added language to the contract he was drafting, if an AI program is misaligned with its user’s goals, then it may draft contracts that do not reflect those goals. Both general intuition and contract law theory suggest that in a scenario like Example #3, the parties to the contract should not be bound by terms to which they did not assent. Similarly, in the case of misaligned AI contracting software, intuition suggests that it would be unethical to bind a party to an agreement if the AI model that contracted on their behalf did so in a manner that did not align with the user’s intentions.

C. Who Is Liable or Accountable?

If and when AI-assisted or wholly automated contracting goes wrong, who should we hold liable for breached contracts? Would we want to differentiate between the AI developer, the human who “hired” the AI to contract on their behalf or otherwise used the model to contract, and the AI model itself?

These questions are especially difficult to answer because traditional liability frameworks are designed with an inherent assumption that a human decisionmaker caused the alleged harm.¹²⁵ In the contracting setting, we would hold this human decisionmaker accountable for their breach of a contractual promise. If AI functions as a contracting agent, however, a human may not have made decisions that directly caused the complaining party’s harm. If an AI contracting program enters into agreements on a human’s behalf, that may not be enough under traditional liability frameworks to justifiably say that the human caused the alleged harm and hold them liable for it.

For similar reasons, it also appears unreasonable to hold an AI developer liable for breaches of contracts that its AI contracting software simply aided in drafting. To oversimplify, in order to prove causation of harm due to a breached contract, a plaintiff must demonstrate that the defendant’s breach was more than just an actual cause of the plaintiff’s harm.¹²⁶ Rather, the plaintiff has a higher burden: they must prove that the defendant’s act was the proximate cause of their harm.¹²⁷ To demonstrate proximate cause, the plaintiff must show that the harm was a foreseeable consequence of the defendant’s breach of contract.¹²⁸ In the AI context, a developer and its AI software may be actual, or but-for, causes of the harm suffered by a party who contracts with the software. However, the broad applicability of AI contracting software and its limitless potential uses suggest that, in many cases, the developer’s creation of the software would not be the legal, or proximate, cause of the injury because the alleged harm was not foreseeable.

Given these uncertainties about holding either the user or developer of AI-driven contracting software accountable, a plaintiff’s final potential avenue in a breach of contract claim might involve asserting that the AI program itself is liable for the harm. However, while holding the contracting algorithm liable may initially appear to be a plausible approach, it poses two serious concerns.

First, there is no legal precedent for holding a completely nonhuman entity liable for a person’s harm. Although corporations have been found liable for various harms, they are not analogous to AI-powered software programs. As “legal fictions,” corporations achieve legal personhood by “acting” through the actions of their human agents (that is, their officers, directors, promoters, and employees).¹²⁹ AI contractors differ significantly from corporations and operate in an almost entirely opposite manner. Instead of operating through human agents, AI software operates on behalf of humans. As a result, efforts to attribute liability to AI software by drawing analogies to corporate liability may be both inaccurate and misguided.

Second, if an AI model is held liable for contract breaches and required to pay damages to compensate for the resulting harms, this could expose AI software developers to above average or substantial levels of risk.¹³⁰ This increased risk may discourage AI developers from investing in further innovation, fearing that their investments could be lost to breach of contract, product liability, or other lawsuits. Additionally, if AI companies or algorithms were exposed to liability in this way, potential entrants to the AI contracting industry might hesitate, hindering further technological advancements. This suppression of innovation could cause greater harm to society than that posed by the inability of those alleging harm from breached contracts to obtain damages.

Thus, preserving innovation and investment into AI technology and its legal applications may involve specially protecting AI software, its users, and its developers from liability for harm-causing AI contracts—or, at the very minimum, maintaining existing standards of proof that prevent plaintiff-victims with lower socioeconomic statuses from securing damages in these types of cases.¹³¹ Under the current legal framework, only those individuals with higher socioeconomic statuses would be able to secure the costly expert testimony needed to demonstrate that an AI’s contract drafting did not satisfy the standard cost-benefit analysis used in determining liability in product warning, instruction, or design liability cases.¹³² Lowering the burden of proof would combat this issue, but such a change is unlikely to occur as it would expose AI software, its developers, and its users to substantial liability due to the highly unpredictable nature of AI-created risks.¹³³ Although there are numerous instances in recent history when the American public has accepted negative consequences for a minority group to achieve broader benefits for society as a whole,¹³⁴ the benefits of AI contracting do not outweigh its disproportionate harms.

Another issue in the context of assigning liability for AI contracting-related harms is allocating fault between the multiple parties that were involved in the contract’s creation and implementation. Parsing out which party should be held liable—whether it be the AI software itself, its designer, seller, or user, or another party altogether—inherently includes a significant policy decision as to how society chooses to (dis)incentivize AI technology’s development, usage, and applications.¹³⁵

D. Data Privacy and Security Concerns

When you log into ChatGPT to ask it a question, the prompt that you send the model does not stay on your laptop. It does not even stay on ChatGPT’s webpage.¹³⁶ By the time your query has been answered by the LLM (which is within seconds), your information is long gone—out into the ether of wherever OpenAI stores the many gigabytes of data it uses to train its AI models.¹³⁷ In reality, the information likely ends up in a remotely located and highly classified data center, where it sits on a server until OpenAI uses it to train its next LLM.¹³⁸

The average person may not care that their question asking ChatGPT to craft a new diet for them may get stored somewhere.¹³⁹ However, sophisticated legal clients commonly include their proprietary information—such as property addresses, purchase prices, and highly technical engineering or software information—in high-level contracts. Thus, legal clients are typically very protective of the private information in their contracts and subsequently include confidentiality clauses in their agreements to safeguard against disclosure to third parties.¹⁴⁰

For cases in which legal clients have highly sensitive information, AI’s “black box” can become a major issue. The “black box” problem refers to the fact that we are unable to see how LLMs make their decisions.¹⁴¹ Although the inputs and outputs of LLMs are observable, given the algorithms’ ever-evolving nature, their internal workings are a mystery—including what input data they retain.¹⁴² AI models’ mysterious inner workings may interfere with the efficacy and implementation of AI in the contract redlining and negotiation space because legal clients who are protective of their proprietary information may object to an AI model’s use in the contracting process. Even if a law firm used an “internal” AI software program, clients with sensitive information may not be comfortable with such a program because their information would be stored within the firm’s model for perpetuity.

There is an inherent tension between training an LLM and protecting clients’ confidential information. LLM models are trained on inputted data—and they improve if provided with greater quantities of training data.¹⁴³ Therefore, without clients who are willing for their information to be input into an LLM, the model’s efficacy will not improve. This may create problematic incentives for law firms to encourage their clients to commingle their sensitive information with that of other clients in the firm’s AI model in order to produce a better-quality software program for the firm.

Finally, LLMs’ greatest skill is their ability to recognize patterns in data. With more and more sensitive client information inputted into and stored by an LLM, the potential for an AI model to identify connections between data increases. In the case of an outsourced AI model not owned by a law firm, these recognized patterns may be disclosed to third parties for nefarious purposes. For instance, an LLM may analyze contracting patterns to determine which companies are economically successful, leading a third party to misappropriate this information and engage in fraudulent or deceptive dealings. In a more alarming scenario, third parties who gain access to confidential company addresses or security details that an LLM extracted from contracts—such as the location of a technology company’s classified data center—could use this information to break into the facility and steal servers.

V. AI: ARTIFICIAL INTELLIGENCE OR ACCURACY ISSUES?

Artificial intelligence is widely known to “hallucinate,” or misinterpret patterns in its data and create inaccurate or nonsensical outputs.¹⁴⁴ When an LLM hallucinates, it can fabricate legal cases, contradict itself, or provide outright wrong answers to questions.¹⁴⁵ In the contracting space, minute missteps when negotiating or redlining an agreement can have enormous consequences.¹⁴⁶ Therefore, AI’s tendency to hallucinate presents a major barrier to its successful implementation as a contractor. Given its pattern recognition functionality, AI is also known to provide different answers to the same question if it is asked multiple times, with slightly different wording, or by different people. These inaccuracies and inconsistencies are unacceptable in a detail-oriented field such as contract law, where “the devil is in the details.”

Furthermore, there are currently no regulatory compliance standards that would require AI models to be regularly updated with new case law, statutes, and other sources of law. On the other hand, state bar associations require attorneys to remain knowledgeable about updates in the law and complete continuing legal education (“CLE”) courses.¹⁴⁷ The nonexistence of regulation that would mandate AI models to remain up to date on new laws presents major challenges in the contracting space. Just like an attorney who refuses to complete their CLEs, an AI model that is not fully updated on what the current law is cannot adequately contract or negotiate for a client. Even if regulations were eventually implemented that required regular updates to AI models so that they included new case law, statutes, and other laws, this would be difficult to administer. Since it would be incredibly difficult, if not impossible, for an AI model to be instantaneously updated as new laws came into effect, this time lapse means that these models will always be somewhat out of date and not fully updated on the newest laws. Additionally, such regulations, if they came into effect, would place immense compliance costs on AI developers to continually update their models and may even discourage certain developers from entering the legal contracting space altogether.

Finally, LLMs are not sufficiently accurate to be used in contracting because of their technical limitations. AI technology lacks the ability to exercise judgment and is known to struggle with customization, context, and complexity (“CCC”)¹⁴⁸—all of which are highly relevant aspects of contracting. In fact, CCC is a major reason in-house counsel as a general concept exists; businesses that are highly technical or complex in nature often prefer to have their own attorneys who are better suited than outside counsel to understand the company’s unique situation and needs. Thus, AI would not serve well as a legal assistant because it would not understand the context or complexity of a prospective client’s specific contracting needs.

VI. LEGAL PROFESSION CHALLENGES

As fiduciaries for their clients, lawyers are held to a high professional standard. Subsequently, lawyers’ use of AI technology poses unique challenges to the legal profession, particularly in the context of contract drafting and negotiation.

A compelling argument can be made that an attorney who relies on AI technology to draft contracts violates their professional duties of competence and diligence.¹⁴⁹ Although the AI-toting attorney may argue that an LLM is a tool that they use to aid their work, much like Microsoft Word or Excel, such an analogy is misplaced. Generative AI differs from these types of technologies because it allows lawyers to create substantive work product with minimal effort.¹⁵⁰ Therefore, relying on ChatGPT for contract drafting may undermine an attorney’s obligation to provide competent and diligent representation for their client.

Furthermore, an attorney’s reliance on AI technology to draft and negotiate contracts may create communication gaps between the attorney and their clients. If an attorney blindly accepts an LLM’s output as the best possible redline or negotiation strategy in a given situation, the attorney may be incapable of explaining to their client why they undertook the AI-suggested action.¹⁵¹ This blind acceptance of an AI model’s output is very likely if an attorney uses an AI model to contract because we often cannot look into an LLM’s inner workings or see why they generate the outputs that they do.¹⁵² The black box problem exacerbates this duty of communication issue if an AI model executes contracts without humans involved in the contract drafting and negotiation process, as the model would provide little to no legal reasoning to its client to explain its outputted action.

As mentioned in Section IV.D, serious duty of confidentiality concerns arise when clients’ data is input into an LLM.¹⁵³ Even if placeholder information is used in an effort to protect confidential client data, an AI model may be able to use its ability to detect patterns to extract confidential information from the provisions and context that are inputted into it. This is especially possible if an attorney or law firm inputs substantial amounts of client data into an AI model, as in the case of AI-driven contract lifecycle management programs or internal AI programs more broadly.

Finally, AI is not suited for the ethical and emotional dilemmas that are inherent in legal contracting and negotiation. Attorneys regularly encounter ethically and emotionally intense situations when negotiating and contracting for their clients. If an AI model is tasked with contracting in an ethically ambiguous situation, it would lack the human touch necessary to appropriately respond. Even if the model was trained to provide canned outputs in specific scenarios, it would be impossible for the model’s programmers to predict all potential ethical dilemmas that the AI model may encounter in practice. Additionally, in emotionally intense contracting settings, such as mergers and acquisitions, partnership agreements, or certain real estate transactions, clients are likely to value the human touch of an attorney over the detached and indifferent nature of an AI model.

VII. EMPIRICAL RESEARCH: “HIRING” CHATGPT IN A CONTRACT NEGOTIATION

To test AI’s current capabilities in the contract drafting and negotiation space, the author conducted novel empirical research using OpenAI’s Application Programming Interface (“API”). The experiment was designed to imitate “hiring” ChatGPT¹⁵⁴ as a legal assistant by tasking it to assist with a client’s negotiation of a commercial real estate lease. To investigate whether ChatGPT suggests different negotiation recommendations depending on its type of client, the author selected four general client types for this experiment: (1) an individual; (2) a small, privately held corporation; (3) a large, publicly held corporation; and (4) a nonprofit organization. ChatGPT was not provided with additional information about each client, and the rest of the experiment—including the exact prompt language, base contract structure, and output scale—was held constant across all client types in order to control for differences in the AI model’s responses.

A commercial real estate lease was selected for this experiment because all four of the selected client types could plausibly negotiate and enter into a commercial real estate lease as a tenant. To simulate a real-world commercial real estate contract, the author provided ChatGPT with thirty generic boilerplate provisions typically found in a commercial real estate lease, such as assignment, security deposit, renewal option, and maintenance provisions.¹⁵⁵ For each provision, the AI software was asked whether it would recommend renegotiation to its client. To facilitate objective comparisons between ChatGPT’s responses for different client types, the query solicited numerical responses by specifically asking ChatGPT to output its response on a scale from 0 to 100. On this scale, 0 indicated that ChatGPT would recommend to the client that the language was acceptable and should not be renegotiated, while 100 signified that ChatGPT would recommend that the language was unacceptable and the client should renegotiate the provision.¹⁵⁶ The 0 to 100 scale was chosen to prevent ChatGPT from outputting renegotiation advice in plain English. With numeric outputs, the author did not need to make subjective judgments about the quality of ChatGPT’s negotiation recommendations—which would have been necessary if they were in plain English—in order to compare the outputs across client types.

ChatGPT was selected as the AI chatbot for this experiment due to its popularity.¹⁵⁷ Because ChatGPT is pervasive, the results of an experiment utilizing it are more easily generalized to real-world applications and settings than the results of an experiment conducted with a less popular AI program. Put simply, the author chose to use ChatGPT for this research because this experiment seeks to replicate laypeople’s use of AI to negotiate contracts and laypeople are more likely to use ChatGPT than other AI programs.

The author also selected OpenAI’s API to conduct this experiment rather than prompting ChatGPT manually because the API provided an efficient and cost-effective method of testing the author’s algorithmic discrimination hypothesis.¹⁵⁸ In general, an API is a set of protocols that connects software programs, devices such as computers, and applications by enabling them to more easily communicate with each other.¹⁵⁹ APIs are useful because they enable a researcher to automate repetitive tasks such as scraping information from webpages or, in this case, prompting ChatGPT repetitively.¹⁶⁰

To conduct this experiment, the author drafted Python code that prompted ChatGPT for each client-provision pairing through its API and saved the AI model’s outputted numbers in an Excel file. Notably, iterating prompts through OpenAI’s API enabled the use of its log probabilities (“logprobs”) feature to construct more accurate data as compared with the data that would result from manual prompting.¹⁶¹ Logprobs is a feature in OpenAI’s API that responds to a particular prompt with both ChatGPT’s most likely outputs and the corresponding log probabilities for those responses.¹⁶² In essence, the logprobs feature enables a researcher to determine the estimated probability that ChatGPT would respond to any given prompt with particular responses.¹⁶³ For instance, in the context of this experiment, when ChatGPT is tasked with advising an individual client about whether to renegotiate the “Premises” provision of the provided lease agreement, the AI program is 78.629% likely to output “25,” 11.181% likely to output “50,” and 6.966% likely to output “75” on the 0 to 100 scale.¹⁶⁴

The logprobs feature allowed the author to construct a weighted response output for each inputted client-provision pairing that represents ChatGPT’s landscape of potential responses in a single number. The author created each client-provision prompt’s corresponding weighted response by utilizing the five most common responses for each prompt. For example, the mathematics behind the average weighted response when ChatGPT advises an individual client about the “Premises” provision of the lease is shown in Figure 1 and described below.

Figure 1. Weighted Response Calculation for Individual Client “Premises” Provision

First, each of the top five response values were multiplied by their corresponding probabilities, which were extracted from the log probabilities provided by OpenAI’s API. Then, these individually weighted values (shown in Figure 1 under the “Response × Probability” column) were summed. For the “Premises” provision and individual client prompt in Figure 1, this sum totaled approximately 31.095. Then, the individual probabilities of the five most likely outputs were summed; in Figure 1’s example, that total equaled approximately 0.9798, or 97.98%. This total conveys that approximately 97.98% of ChatGPT’s responses to this particular client-provision prompt were either 25, 50, 75, 20, or 85. Finally, the “Response × Probability” sum (approximately 31.095) was divided by the probability sum (approximately 0.9798) to calculate the weighted average response for this particular client-provision combination, or 31.73. Therefore, when ChatGPT is tasked with assisting an individual client and the provided provision of the lease agreement is the “Premises” provision, the AI program’s weighted average response is 31.73. Qualitatively, a result of 31.73 on the 0 to 100 scale facially suggests that ChatGPT may not be highly likely or enthusiastic to recommend to the individual that they should renegotiate this provision. However, the nature of this experiment was to derive comparisons between client types, so although the 31.73 value might suggest that ChatGPT is unlikely to be a zealous advocate,¹⁶⁵ this value must be compared with the AI program’s average weighted responses for other client types with the same “Premises” provision to be able to draw substantive conclusions about ChatGPT’s propensity to discriminate against certain types of legal clients.

As demonstrated above, this math derived a single numerical response for each client-provision pairing, facilitating objective comparisons between ChatGPT’s outputs when it is “hired” by different clients. The individual client’s average weighted response was used as a baseline measure by taking each non-individual client response and subtracting the corresponding individual response for the same lease provision to calculate a difference between the two values for each provision. Then, these difference calculations (one value for each provision of the lease agreement) were plotted. The visual representations of the differences between the average weighted responses for an individual client and a small corporation, large corporation, and nonprofit organization were constructed by plotting these differences on the following histogram plots.¹⁶⁶

Small Corporation Versus an Individual as a Client

Figure 2. Histogram of Differences in Average Weighted Responses Between a Small Corporation and an Individual Client

The histogram of differences between ChatGPT’s average weighted responses for a small corporation and those of an individual client demonstrates a few takeaways. First, the differences are clustered around zero, where zero indicates no numerical difference between ChatGPT’s responses when hired by either an individual or a small corporation. This finding suggests that, for the most part, ChatGPT treats individual and small

corporate clients similarly when tasked with advising them in a contract negotiation.

However, the histogram includes some instances of large differences between individual and small corporate responses, such as one provision where ChatGPT output a renegotiation suggestion for a small corporation that was over thirty points larger than the recommendation it provided the individual client. Notably, there were no instances of ChatGPT outputting a weighted response for the individual client that was greater than or equal to ten points higher than its corresponding small corporate output. On the other hand, there were multiple provisions where ChatGPT output renegotiation suggestions for small corporate clients that were ten or twenty points higher than the provision’s corresponding individual-client responses. These provisions, in addition to the rightward-skewed shape of the histogram in Figure 2, suggest that ChatGPT tends to recommend renegotiation for small corporate clients more often and to a greater extent than it does for individual clients.

Large Corporation Versus an Individual as a Client

Figure 3. Histogram of Differences in Average Weighted Responses Between a Large Corporation and an Individual

Figure 3, which shows the differences between ChatGPT’s responses for large corporate clients and individual clients, demonstrates similar patterns. Much like the small corporate client example in Figure 2, Figure 3 includes clustering around zero. This suggests that for a variety of provisions, ChatGPT will provide similar renegotiation recommendations for both individual and large corporate clients.

However, Figure 3 also includes the most dispersed results of the three client comparisons conducted in this experiment. The histogram includes a wide variety of difference values, most of which are relatively numerically different from one another—so different, in fact, that they fall into individual difference bins in Figure 3’s histogram. The dispersed nature of these results suggests that, while there is some clustering around zero, ChatGPT provides a wider range of negotiation recommendations when advising large corporate clients compared with other client types. This variability may indicate that ChatGPT’s training data assumes that large public corporations are more varied and complex than smaller, privately held corporations¹⁶⁷ and subsequently require a broader variety of negotiation advice or have greater market power to exert its will in a contract negotiation.¹⁶⁸ Additionally, the broader spread of the differences in responses for large corporate clients as compared with individual clients might also suggest that ChatGPT views large corporate clients as having more nuanced or varied negotiation capabilities and needs compared with individual clients.

Nonprofit Organization Versus an Individual as a Client

Figure 4. Histogram of Differences in Average Weighted Responses Between a Nonprofit Organization and Individual Client

Figure 4 visualizes the difference in weighted responses for a nonprofit organization as ChatGPT’s client as compared with an individual as its client. Here, we see the strongest clustering of results around zero of the three client comparisons studied in this experiment.¹⁶⁹ This suggests that, between corporations and nonprofit organizations, ChatGPT considers a nonprofit to be most analogous to an individual in the contracting space. This makes some intuitive sense if ChatGPT assumes that both individuals and nonprofit organizations tend to have less financial and political resources, market power, and influence over negotiations than large public or small private corporations.¹⁷⁰

However, despite this stronger clustering of differences around zero for nonprofit organizations, the histogram in Figure 4 continues to demonstrate the same trend seen for both corporation types: a rightward shift. This again suggests that ChatGPT favors nonprofit organizations over individuals in the negotiation space by more strongly or commonly recommending renegotiation to them, potentially because the model perceives individuals as having less power than nonprofit organizations to effectively negotiate for favorable provisions.

D. Overall Trends and Conclusions

Figure 5. Histogram of Differences in Average Weighted Responses Across All Four Client Types

Figure 5 is an overlay of the results from Figures 2, 3, and 4. Taken as a whole, while there is some clustering around zero, the rightward shift in the data demonstrates that ChatGPT tends to recommend renegotiation to (1) large, public corporations; (2) small, privately held corporations; and (3) nonprofit organizations more often and to a greater extent than it does when its client is an individual. Additionally, there are few occurrences of negative values on the combined histogram, which represent when ChatGPT outputted an individual client renegotiation value that was higher than the value outputted for any of the other client types for a given provision. Collectively, these trends suggest that ChatGPT may discriminate against individuals when “hired” to consult a contract negotiation by recommending

less favorable terms or negotiation strategies to an individual than it would to other types of clients.¹⁷¹

Interestingly, the minimum differences for the small corporation, large corporation, and nonprofit organization clients were -5.82, -8.42, and -5.36, respectively. These values represent the provisions for which ChatGPT most strongly recommended negotiation to an individual client as compared with other client types. Conversely, the maximum differences, which represent the instances when ChatGPT most strongly recommended the small corporation, large corporation, and nonprofit organization to negotiate as compared with an individual client, are significantly larger than the minimum differences. The maximum differences for the small corporation, large corporation, and nonprofit organization were 39.28, 22.68, and 29.43, respectively. Taken together with each client type’s mean differences (3.98, 2.99, and 3.71, respectively), this data demonstrates the systematic disadvantage in negotiation advising that individual clients experience compared with their corporate or nonprofit counterparts when using ChatGPT to assist in a contract negotiation.

E. Shortcomings

Although the findings of this empirical study are intriguing, there are some important caveats to note as well. First, the author chose to specifically use OpenAI’s GPT-4 Turbo model for this experiment, meaning that its results may not be readily generalizable to other OpenAI or AI models. Additionally, to best balance creativity with coherence, the author set the API’s temperature to 0.7. Temperature is a parameter value that controls how often ChatGPT outputs a less likely response; in essence, it is a measure of how random or creative the model’s responses are.¹⁷² The author initially tested the experiment with GPT-4 Turbo’s default temperature of 1 but ultimately tamped the parameter down to 0.7 in an effort to replicate the deterministic nature of legal advising.¹⁷³ The author also decided to use only the top five logprobs, rather than more, in conducting this analysis.¹⁷⁴ Both the temperature and top logprob decisions were made in an effort to replicate an individual user’s experience on ChatGPT while maintaining consistency across various API code executions.¹⁷⁵

Unfortunately, while these decisions were necessary to conduct the research, they also inherently shaped its results. Any modification of the temperature or number of requested logprobs alters ChatGPT’s renegotiation recommendations. Furthermore, this style of research does not easily facilitate demonstrating statistically significant findings—such as with a p-value used in traditional statistical analyses—because the model generates different outputs each time the code is run. As a result, these findings are not readily replicable, which is an unfortunate nature of conducting social science experimentation with the black boxes that are AI models.¹⁷⁶

Beyond technical limitations, other factors may impact the generalizability of this study’s findings. Only one type of contract, a lease agreement with thirty boilerplate provisions, was used in this research. Future scholars can expand upon this work by incorporating new and additional types of contracts and more detailed or varied provisions into this study’s framework to investigate if AI models discriminate against individuals when contracting in different contexts or with multiple types of contracts. Additionally, given that ChatGPT is a large language model, it is likely that the exact phrasing of the prompts used in this research impacted the model’s recommendations. Therefore, future scholarship can include a greater diversity of prompt language to determine if these findings hold across different prompting styles and approaches.

Similarly, additional research can incorporate more specific details about the AI model’s client when soliciting negotiation advice, whether in the contract itself or by expanding on the details included when contextualizing the prompt for the AI model. Inclusion of greater detail in a future study may determine if the use of specific company or individual names or other information results in similar algorithmic discrimination patterns. Greater contextualization is also more likely to align with real-world uses of AI modeling in contract negotiation, as the user would probably provide information about themself, the other party, and the deal at hand while soliciting assistance from an AI model.

Additionally, another version of this research might request AI’s assistance in renegotiating a contract that initially includes blatantly favorable (or unfavorable) provisions for the client. This arrangement may demonstrate different findings than an experiment conducted with relatively neutral starter provisions would, like those used here. The author intentionally used neutral lease provisions in this case to facilitate easier comparisons between client types and force ChatGPT to rely on its training data in making renegotiation recommendations rather than following an implicit suggestion to renegotiate provisions that are blatantly unfavorable (or vice versa).

Another alternative experiment design might use iterative follow-up prompts, rather than a single prompt, to solicit advice from the AI model because the language and structure of the prompt used to solicit advice may influence the AI model’s recommendations. For example, uploading a contract to ChatGPT and asking it a leading question such as “Should I negotiate Provision A?” may result in the AI model suggesting renegotiation more often or to a stronger degree than a broadly phrased prompt that asks ChatGPT what it thinks about the provision. Furthermore, this experiment used a numeric scale to gather ChatGPT’s outputs in a form that was easily and objectively comparable across client types. The 0 to 100 scale used in this Note’s empirical framework inherently assumes that this continuum is representative of the quality and strength of the renegotiation advice that ChatGPT would output in plain English to a real-world client. In real life, an AI model’s output would be substantive—it would tell the user in plain English what it thinks of the provision, whether or not to renegotiate it, and why. Therefore, it may be worthwhile for future research to solicit and examine substantive outputs and assess whether those outputs are equally clear, definite, and confident across different client types.

Although this study’s findings have limitations that are common to empirical research, this Note offers novel insights into algorithmic discrimination in the contracting space. Plausibly, ChatGPT discriminates against individuals when tasked with advising them in a contract negotiation—as evidenced by the AI model suggesting renegotiation to individual clients less often and to a smaller degree than it does when advising other types of clients.

As noted above, additional scholarship can expand upon the research implemented in this Note to strengthen this conclusion. If future research confirms algorithmic discrimination in the contracting space, then AI models must be retrained to prevent further exacerbation of existing inequalities. If AI models discriminate against individuals as their contracting client, this behavior may worsen inequities between those who have the resources to renegotiate favorable contract terms (such as corporate firms) and those who do not (individuals, for example) and are therefore more likely to rely on AI as an accessible contract negotiation tool.¹⁷⁷

VIII. ENOUGH NEGATIVITY—WHAT IS AI GOOD AT?

While AI has a plethora of disadvantages that hinder its applicability to contract drafting and negotiation, it does have advantages in limited legal applications. For instance, given its ability to summarize information quickly and accurately, AI is a prime candidate for administrative, clerical, or other summary tasks. A number of these types of AI applications already exist, such as Evisort,¹⁷⁸ a contract workflow management program. AI can also streamline a law firm’s tracking of its billable hours (e.g., Clio AI¹⁷⁹). Furthermore, AI technology can prove useful in speeding up legal research by summarizing documents, as seen with LexisNexis’s Protégé.¹⁸⁰ As a rule of thumb, AI is best suited for tasks that do not require judgment. Unlike billing or other administrative tasks, contract drafting and negotiation requires immense judgment, which is why AI technology is better suited for legal uses other than contracting.

CONCLUSION

Artificial intelligence technology has taken the world by storm in recent years. Nearly every industry has experimented with new and innovative applications of AI technology, and the legal profession is no exception. Despite this enthusiasm, transactional attorneys should pause and seriously consider the negative implications and serious challenges involved when applying AI technology to the contracting space before they attempt to implement AI models into their practice. At the same time, it is important to remain mindful of the distinction between the “practice of the . . . [law]” and the “business of . . . [a law] firm[].”¹⁸¹ Given the contract law issues, equity concerns, legal profession challenges, and accuracy problems that abound when AI models draft and negotiate legal contracts, AI may be better suited to assist attorneys with administrative business tasks rather than the practice of law itself. This limitation on the use of AI in the contracting space is further underscored by ChatGPT’s tendency to discriminate against individuals when asked to assist them in contract negotiations, as demonstrated by the empirical research presented in this Note.

On the other hand, those determined to use AI in the contracting space may find it more useful in an in-house setting than in a traditional law firm. The typical in-house counsel functions as a “jack-of-all-trades” for their employer, managing multiple projects and legal practice areas simultaneously. Additionally, in-house counsel usually manages standard form contracts, particularly in cases when their business holds significant market power in negotiations with other parties. Maintaining a consistent client (i.e., the business) and contractual structure over multiple contract cycles would allow an AI program to detect familiar patterns and better understand the context and complexity needed to tailor contracts to the business’s needs. Furthermore, an experienced human in-house attorney may be able to manually adjust for any discriminatory patterns in an AI model’s outputted negotiation suggestions and provisions. Finally, the research presented in this Note indicates that large public and small private corporations face a lower risk of AI-driven discrimination in contract drafting and negotiation compared with other clients, such as individuals. Therefore, in an in-house attorney’s busy, consistent, and controlled setting, AI models may prove to have some utility.

However, technological innovation has its limits, and AI models are not yet suited for broad applications in legal contracting and negotiation. While this author is eager to see how AI developers and legal professionals address the current challenges of applying AI to contract drafting and negotiation—particularly, AI’s discriminatory tendencies—she is also reassured that transactional attorneys still enjoy some level of job security, at least for now.

Attachment A: Commercial Real Estate Lease Provisions

PREMISES

Landlord hereby leases to Tenant and Tenant hereby leases from Landlord those certain premises (the ‘Premises’) consisting of approximately _______ square feet located at _______________________, as more particularly described in Exhibit A attached hereto and incorporated herein by reference.

TERM.

The term of this Lease shall be for a period of ______ years, commencing on ____________, 20___ (the ‘Commencement Date’) and ending on ____________, 20___ (the ‘Expiration Date’), unless sooner terminated as provided herein.

BASE RENT.

Tenant shall pay to Landlord as Base Rent for the Premises, without any setoff or deduction, the annual sum of $_______________ payable in equal monthly installments of $_______________ in advance on the first day of each month during the Term.

SECURITY DEPOSIT.

Upon execution of this Lease, Tenant shall deposit with Landlord the sum of $_______________ as security for the faithful performance by Tenant of all terms, covenants, and conditions of this Lease. If Tenant fails to pay rent or other charges due hereunder, or otherwise defaults with respect to any provision of this Lease, Landlord may use, apply or retain all or any portion of the Security Deposit to cure such default or to compensate Landlord for any loss or damage resulting from such default.

PERMITTED USE.

Tenant shall use and occupy the Premises solely for _______________________ and for no other purpose without the prior written consent of Landlord.

OPERATING EXPENSES.

In addition to Base Rent, Tenant shall pay as Additional Rent Tenant’s proportionate share of all Operating Expenses. ‘Operating Expenses’ shall mean all costs and expenses incurred by Landlord in connection with the ownership, management, operation, maintenance, repair, and replacement of the Building and Property, including but not limited to: property taxes and assessments, insurance premiums, utilities, management fees, common area

maintenance, landscaping, and repairs and maintenance not required to be performed by Tenant.

MAINTENANCE AND REPAIRS.

Landlord shall maintain in good repair the structural portions of the Building, including the foundation, exterior walls, structural portions of the roof, and common areas. Tenant shall, at Tenant’s sole cost and expense, maintain the Premises in good condition and repair, including all interior non-structural portions of the Premises, such as doors, windows, glass, and utility systems exclusively serving the Premises.

ALTERATIONS AND IMPROVEMENTS.

Tenant shall not make any alterations, additions, or improvements to the Premises without the prior written consent of Landlord, which consent shall not be unreasonably withheld for non-structural alterations costing less than $____________. All alterations shall be made at Tenant’s sole cost and expense and shall become the property of Landlord upon the expiration or termination of this Lease.

INSURANCE REQUIREMENTS.

Tenant shall, at Tenant’s expense, obtain and keep in force during the Term of this Lease a policy of commercial general liability insurance with coverage of not less than $____________ per occurrence and $____________ general aggregate. Tenant shall also maintain property insurance covering Tenant’s personal property, fixtures, and equipment. Landlord shall be named as an additional insured on Tenant’s liability policies.

INDEMNIFICATION.

Tenant shall indemnify, defend, and hold Landlord harmless from any and all claims, damages, expenses, and liabilities arising from Tenant’s use of the Premises or from any activity permitted by Tenant in or about the Premises. Landlord shall indemnify, defend, and hold Tenant harmless from any and all claims, damages, expenses, and liabilities arising from Landlord’s negligence or willful misconduct.

ASSIGNMENT AND SUBLETTING.

Tenant shall not assign this Lease or sublet all or any part of the Premises without the prior written consent of Landlord, which consent shall not be unreasonably withheld. Any assignment or subletting without such consent shall be void and shall constitute a default under this Lease.

DEFAULT AND REMEDIES.

The occurrence of any of the following shall constitute a material default and breach of this Lease by Tenant: (a) failure to pay rent when due if the failure continues for ____ days after written notice has been given to Tenant, (b) abandonment of the Premises, or (c) failure to perform any other provision of this Lease if the failure is not cured within ____ days after written notice has been given to Tenant. Upon any default, Landlord shall have all remedies available under applicable law.

QUIET ENJOYMENT.

Landlord covenants that Tenant, upon paying the rent and performing the covenants herein, shall peacefully and quietly have, hold, and enjoy the Premises during the Term hereof.

ENTRY BY LANDLORD.

Landlord reserves the right to enter the Premises at reasonable times to inspect the same, to show the Premises to prospective purchasers, lenders, or tenants, and to make necessary repairs. Except in cases of emergency, Landlord shall give Tenant reasonable notice prior to entry.

SIGNAGE.

Tenant shall not place any sign upon the Premises without Landlord’s prior written consent. All signs shall comply with applicable laws and ordinances.

COMPLIANCE WITH LAWS.

Tenant shall comply with all laws, orders, ordinances, and other public requirements now or hereafter affecting the Premises or the use thereof. Landlord shall comply with all laws, orders, ordinances, and other public requirements relating to the Building and common areas.

ENVIRONMENTAL PROVISIONS.

Tenant shall not cause or permit any Hazardous Materials to be brought upon, kept, or used in or about the Premises by Tenant without the prior written consent of Landlord. Tenant shall indemnify, defend, and hold Landlord harmless from any and all claims, judgments, damages, penalties, fines, costs, liabilities, or losses arising from the presence of Hazardous Materials on the Premises which are brought upon, kept, or used by Tenant.

SUBORDINATION.

This Lease is and shall be subordinate to all existing and future mortgages and deeds of trust on the property. Tenant agrees to execute any subordination, non-disturbance and attornment agreements required by any lender, provided that such lender agrees not to disturb Tenant’s possession of the Premises so long as Tenant is not in default under this Lease.

FORCE MAJEURE.

Neither party shall be deemed in default hereof nor liable for damages arising from its failure to perform its duties or obligations hereunder if such failure is due to causes beyond its reasonable control, including, but not limited to, acts of God, acts of civil or military authority, fires, floods, earthquakes, strikes, lockouts, epidemics, or pandemics.

HOLDOVER.

If Tenant remains in possession of the Premises after the expiration or termination of the Term without Landlord’s written consent, Tenant shall be deemed a tenant at sufferance and shall pay rent at _____ times the rate in effect immediately prior to such expiration or termination for the entire holdover period.

SURRENDER OF PREMISES.

Upon expiration or earlier termination of this Lease, Tenant shall surrender the Premises to Landlord in good condition, ordinary wear and tear and damage by fire or other casualty excepted. All alterations, additions, and improvements made to the Premises by Tenant shall remain and become the property of Landlord, unless Landlord requires their removal.

DISPUTE RESOLUTION.

Any dispute arising under this Lease shall be first submitted to mediation, and if mediation is unsuccessful, then to binding arbitration in accordance with the rules of the American Arbitration Association. The costs of mediation and arbitration shall be shared equally by the parties.

NOTICES.

All notices required or permitted hereunder shall be in writing and may be delivered in person (by hand or by courier) or sent by registered or certified mail, postage prepaid, return receipt requested, or by overnight courier, and shall be deemed given when received at the addresses specified in this Lease, or at such other address as may be specified in writing by either party.

OPTION TO RENEW.

Provided Tenant is not in default hereunder, Tenant shall have the option to renew this Lease for ____ additional period(s) of ____ years each on the same terms and conditions as set forth herein, except that the Base Rent shall be adjusted to the then-prevailing market rate. Tenant shall exercise this option by giving Landlord written notice at least ____ days prior to the expiration of the then-current term.

OPTION TO EXPAND.

Subject to availability, Tenant shall have the right of first offer to lease additional space in the Building that becomes available during the Term. Landlord shall notify Tenant in writing of the availability of such space and the terms upon which Landlord is willing to lease such space. Tenant shall have ____ days from receipt of such notice to accept or reject such offer.

RELOCATION.

Landlord reserves the right, upon providing Tenant with not less than ____ days’ prior written notice, to relocate Tenant to other premises within the Building or Project that are comparable in size, utility, and condition to the Premises. In the event of such relocation, Landlord shall pay all reasonable costs of moving Tenant’s property and improving the new premises to substantially the same standard as the Premises.

PARKING AND TRANSPORTATION.

Tenant shall be entitled to use ____ parking spaces in the Building’s parking facility on a non-exclusive basis. Landlord reserves the right to designate parking areas for Tenant and Tenant’s agents and employees.

BUILDING RULES AND REGULATIONS.

Tenant shall comply with the rules and regulations of the Building adopted and altered by Landlord from time to time, a copy of which is attached hereto as Exhibit B. Landlord shall not be responsible to Tenant for the non-performance of any of said rules and regulations by any other tenants or occupants of the Building.

GOVERNING LAW.

This Lease shall be governed by and construed in accordance with the laws of the State of ______________. If any provision of this Lease is found to be invalid or unenforceable, the remainder of this Lease shall not be affected thereby.

ENTIRE AGREEMENT.

This Lease contains the entire agreement between the parties and supersedes all prior agreements, whether written or oral, with respect to the subject matter hereof. This Lease may not be modified except by a written instrument executed by both parties.

Attachment B: Excel Spreadsheet & Python Code

The Excel spreadsheet of OpenAI’s API outputs and the Python code used to obtain this data is on file with the author and available upon request.

99 S. Cal. L. Rev. 239

Download

Carly Snell*

*Executive Articles Editor, Southern California Law Review, Volume 99; J.D. Candidate 2026, University of Southern California Gould School of Law; Master of Public Policy Candidate 2027, University of Southern California Sol Price School of Public Policy; B.S., Mathematics, 2023, University of Arizona; B.A., Political Science, 2023, University of Arizona. I extend my sincere gratitude to Professor Jonathan H. Choi for his invaluable guidance, my friends and family for their unwavering support, and the editors of the Southern California Law Review for their hard work and dedication in preparing my Note for publication.

The Default Rule and Due Process: Diverging Interpretations of “The Charging Document” Requirement in Extradition Treaties

July 2025July 2025Jacob M. Karlin*

INTRODUCTION

The United States is a party to over one hundred bilateral extradition treaties with foreign governments.¹ These treaties allow the U.S. and foreign countries to facilitate the transfer of individuals accused of crimes to the jurisdictions seeking to prosecute them.² Extradition is an ancient practice: processes resembling extradition have existed since antiquity, and the United States has entered into versions of bilateral extradition treaties and received extradition requests since shortly after the country’s founding in the 18th century.³

As the world continues to grow smaller by means of technological advances and ever-increasing accessibility to international travel, extradition has become increasingly important as a means of international law enforcement.⁴ This growth in extradition has forced the judiciary of the United States to face unique issues of law that relate to the constitutional rights of the individuals whose extradition from the United States is requested by foreign countries. In that same vein, the recognition and enforcement of international human rights law has grown in the last century, and as rules of international human rights law have become binding on the United States judiciary, courts are faced with new, conflicting demands of both extradition requests and international law-derived rights of relators (that is, the individuals whose extradition is requested by foreign countries).

In 2023, two federal circuit courts analyzed the phrase “the charging document” in two bilateral extradition treaties: the Fourth Circuit reviewed an extradition treaty between the United States and Lithuania, and the Ninth Circuit reviewed an extradition treaty between the United States and Peru. The Fourth and Ninth Circuits disagreed over how to approach the phrase and its effect on the extradition process. In Manrique v. Kolc, the Ninth Circuit found “the charging document” requirement in the U.S.-Peru Extradition Treaty to be ambiguous and subject to multiple interpretations. Utilizing court precedents on treaty interpretation, the Ninth Circuit deferred to the executive branch’s interpretation of the phrase. In doing so, the court found that Peru had provided the necessary documents to satisfy the “charging document” requirement. On the other hand, the Fourth Circuit found that the phrase was clear and unambiguous, holding in Vitkus v. Blinken that the judiciary was compelled to decline Lithuania’s extradition request upon analyzing the “charging document” requirement in the U.S.-Lithuania Extradition Treaty. The Fourth Circuit found that the inclusion of “the charging document” in the U.S.-Lithuania treaty was a requirement that Lithuania had not satisfied when it had presented prosecutorial documents to the Secretary of State in an extradition request. The court rejected the Secretary of State’s argument as to the adequacy of Lithuania’s submitted documents.

The discrepancy between these two circuit courts illustrates how the judiciary’s deference to the executive branch (a deference codified by the Supreme Court in the early 20th century and referred to in this Note as the “default rule”) in matters of extradition treaty interpretation has manifested in the 2020s. At least twenty-eight extradition treaties that the United States has entered into with foreign nations reference the “charging document” in their lists of documents that a foreign nation is required to provide in an extradition request to the United States.⁵ As the judiciary will likely be called to interpret the “charging document” in future extradition requests, the judiciary’s decision to give deference to the executive branch in interpreting this phrase merits attention. The interpretation of the “charging document” requirement implicates due process concerns of relators, given that the charging document requirement ensures that the country requesting extradition complies with the procedure outlined in its treaty. This Note argues that courts, when faced with extradition requests from countries whose treaties include the “charging document” requirement, are bound by precedent to apply the default rule in a way that may conflict with a relator’s constitutional, due process rights. This Note also contends that this form of deferential interpretation to the executive branch may conflict with the fundamental right of due process afforded to relators by international law. However, departing from executive deference affects the United States’ foreign relations with other sovereign countries—this Note will briefly explore this ramification as well.

Part I of this Note provides an overview of how extradition treaties are utilized by the United States and how they are interpreted by both the executive and judicial branches. In brief, the statute governing extraditions in the United States bestows the judiciary with the responsibility of certifying an individual for extradition: the judiciary interprets the relevant extradition treaty to determine whether the person being sought by the requesting country may be certified as extraditable.⁶ Once the court certifies the extraditability of a relator, the Secretary of State has the discretion to either extradite the relator or deny the foreign country’s extradition request.⁷ Importantly, although extradition is neither a full trial nor a solely administrative function, relators are deemed to have certain constitutional rights when subject to extradition proceedings in the United States.⁸ However, the unique procedural characteristics of extradition do not align with notions of constitutionally mandated due process, as relators do not benefit from the constitutional protections that courts have recognized for criminal defendants.⁹ Judicial precedent also mandates that courts defer to the executive branch’s interpretation of extradition treaties.¹⁰ This deference has created friction between the judicial and executive branches, as the judiciary has been tasked with balancing relators’ due process rights against the executive branch’s foreign relations commitments to other sovereign nations. As the fundamental right to due process has been developed by international human rights bodies over the course of the 20th century, the judiciary’s deference to the executive branch has come into conflict with the advancement of due process as an international human right as well.¹¹

Part II surveys two appellate court cases decided in 2023, Vitkus v. Blinken and Manrique v. Kolc. In these cases, the Fourth and Ninth Circuits both analyzed “the charging document” requirement in extradition treaties, and in doing so, they exemplify the divergent approaches to granting deference to the executive branch in extradition procedures. In their divergent outcomes, these cases demonstrate the impact the default rule may have on a court’s decision to determine whether a relator is extraditable.

Part III of this Note analyzes the decisions of the Fourth and Ninth Circuits in Vitkus v. Blinken and Manrique v. Kolc. In analyzing the decisions, this Note argues that the Fourth Circuit’s avoidance of the default rule in reviewing “the charging document” requirement protects the relator from a potential infringement of their constitutional due process rights under domestic law, even at the cost of the executive branch’s ability to maintain foreign relations. The Fourth Circuit’s interpretation also respects the relator’s fundamental right to due process as established by international human rights law. This Note contends that the Fourth Circuit’s interpretation of a bilateral extradition treaty is one example of how the judiciary should approach the “charging document” requirement, notwithstanding other circumstances in the extradition process.

I. BACKGROUND

A.Executing Bilateral Extradition Treaties

The United States and foreign countries usually coordinate the extradition of relators through bilateral extradition treaties. A treaty is “[a]n agreement formally signed, ratified, or adhered to between two countries or sovereigns; [or] an international agreement concluded between two or more states in written form and governed by international law.”¹² In the United States, treaties are “international agreements made by the President with the advice and consent of the Senate in accordance with Article II, [S]ection 2 of the Constitution of the United States.”¹³ Extradition treaties are treaties that contain the general, agreed-upon terms of the extradition process that both signatories must abide by. There are various forms of extradition treaties¹⁴: there are bilateral extradition treaties, which are “concluded between [a country adopting the law] and a foreign country,” and multilateral treaties, which contain “provisions governing extradition of persons who are present in the territory of [country adopting the law].”¹⁵

The United States has entered into extradition agreements with foreign countries since shortly after its founding in the 18th century.¹⁶ The United States primarily executes bilateral extradition treaties.¹⁷ This means that for the United States to engage in an extradition proceeding, the United States usually must have executed an extradition treaty directly with the foreign country requesting extradition in order to consider an extradition request.¹⁸

The extradition process falls under the umbrella of the United States’ foreign relations responsibilities and therefore, extradition is considered by the United States as a responsibility of the executive branch. The executive branch is authorized to manage the extradition process “by virtue of its constitutional power to conduct foreign relations.”¹⁹ The treaties that the executive branch enters into on behalf of the United States can be divided into two kinds of treaties: self-executing treaties, which are akin to legislative acts, and non-self-executing treaties, which are treaties that the federal legislature is required to ratify and enforce.²⁰ Self-executing treaties do not need legislation to be enacted, as their self-executing nature imbues them with the power of domestically-created federal legislation that supersedes both state law and prior federal law.²¹ Bilateral extradition treaties are self-executing.²² Upon ratification of the bilateral extradition treaty with a foreign government, the legislative branch enacts statutes, based on the terms of the extradition treaties, that govern the procedures by which the executive and judicial branches respond to extradition requests.²³ When domestic legislation and treaty provisions conflict, treaty provisions “prevail.”²⁴

A pertinent aspect of treaty enforcement for purposes of this Note is the inclusion of the “documents required” section in an extradition treaty. In the modern era of extradition treaty drafting, extradition treaties usually list the required documents a requesting foreign country must provide to the Secretary of State to initiate proceedings in the United States.²⁵ Under the Revised Manuals on the Model Treaty on Extradition and on the Model Treaty Mutual Assistance in Criminal Matters (the “Manual”), the UN provides recommendations on drafting extradition treaties, including how parties should list the documents that accompany an extradition request:

[T]he request must contain a precise description of the person sought; a copy of the applicable legal provisions (or a statement of the relevant law), a statement of the penalty that can be imposed for the offence; proof of the enforceable sentence or of the warrant of arrest (as the case requires) and any other documents having the same force; and an exposition of the facts for which extradition is requested (including a description of the acts or omissions constituting the alleged offence and an indication of the time and place of its commission). A reference to the basis of jurisdiction has been found to be useful. Additional requirements apply where the person has been convicted of an offence in his or her absence and where the person has been convicted of an offence but no sentence has yet been imposed.²⁶

The Manual explains that in order “[t]o obtain speedy and efficient execution of requests, [the treaty] should provide a precise description of the information to be included in the request,” and that “[t]he treaty will then act as a guide for those who are called upon to provide the information.”²⁷ Given the discrepancy between countries’ legal systems, the Manual recommends that the negotiating parties draft the treaty with reference to specific documents relevant to each country’s criminal procedure to avoid erroneous interpretation of foreign criminal procedure.²⁸ Although guidance on how parties should draft treaties is publicly available, drafting histories of treaties are rarely accessible to the public.²⁹ As such, this Note does not address how bilateral extradition treaties are negotiated and executed by two sovereign nations.

B.The Extradition Process in the United States: Foreign Requests

The extradition process is initiated when a foreign government makes an extradition request to the U.S. State Department. Usually, a foreign government makes this request by providing the supporting documents that are listed in the “documents required” section of the relevant extradition treaty.³⁰ The procedure for responding to an extradition request is codified in 18 U.S.C. § 3184.³¹ Under 18 U.S.C. § 3184, once a foreign country with an extradition treaty with the United States has submitted an extradition request to the Department of State, a warrant is issued for the wanted individual.³² Once the individual is located and arrested, “any justice or judge of the United States” may hear evidence of the “criminality” being heard and considered, and “[i]f, on such hearing, he deems the evidence sufficient to sustain the charge . . . he shall certify the same . . . to the Secretary of State . . . for the surrender of such person, according to the stipulations of the treaty or convention.”³³

When a court hears evidence of the criminality of an individual sought by a foreign government, “the extradition magistrate examines the treaty to ascertain whether it allows extradition in the circumstances presented by the relator.”³⁴ Generally, the magistrate is required to review whether the government has established:

(1) probable cause that the relator committed the alleged offense at the requesting country; (2) the offense upon which extradition is requested is extraditable according to the applicable treaty; (3) the offense in question constitutes a crime [in] both the requesting country and the United States (“dual criminality”); (4) an enforceable extradition treaty exists between the United States and the requesting country; and (5) the arrested individual is the person sought by the requesting country.³⁵

The extradition court does not determine the “guilt or innocence” of the relator.³⁶ The extradition court is limited to hearing the evidence of a case to determine whether “the facts alleged constitute a crime in the prosecuting country”; interpreting the provisions of the treaty to ensure their applicability to the extradition request; and ensuring that the extradition process complies with the relevant constitutional provisions.³⁷ Given its responsibilities, the extradition court’s role in the extradition process is akin to its role in a preliminary hearing in United States criminal court.³⁸ Following the extradition court’s findings on the extradition request, the extradition court may enter “an order certifying extradition to the Secretary of State.”³⁹ Once the judiciary certifies the relator for extradition, the certification is passed on to the Secretary of State, who has the ultimate discretion to either accept or deny the extradition request.⁴⁰

The judiciary’s role in extradition proceedings is somewhat “constrained” by the executive branch.⁴¹ The judiciary is “limited because it cannot enjoin, prohibit, or mandate the executive’s negotiation of an agreement or a treaty, nor can it enjoin or mandate the executive’s exercise of discretion to request a relator’s extradition or to refuse to grant extradition although the terms of the applicable treaty have been satisfied.”⁴² The court reviewing a request for extradition does not determine whether the accused is innocent or guilty, as the extradition process only serves to begin the “criminal proceedings against an accused” individual—the foreign court ultimately decides the guilt or innocence of the accused.⁴³ Therefore, the extradition court in the United States is required to review whether a foreign country’s extradition request satisfies the provisions of the relevant treaty “and that no valid defense or exception to extradition is in order.”⁴⁴

Importantly, extradition orders by the extradition court can only be challenged through petitions for writs of habeas corpus,⁴⁵ and habeas petitions “can challenge detention by the government if [the detention] is in violation of the Constitution, laws or treaties of the United States.”⁴⁶ In general, when considering a habeas petition following a magistrate’s extradition order, the reviewing court considers the following factors: (1) the jurisdiction of the judge presiding over the extradition proceeding; (2) the jurisdiction of the relevant court over the relator; (3) the applicable treaty provisions and their requirements; (4) “the character of the crime charged and whether” the crime is included within the treaty provisions; and (5) whether the government has provided evidence to substantiate a claim of extraditability.⁴⁷

C.Extradition Treaty Interpretation in the United States

The magistrate court is responsible for reviewing an extradition treaty to determine whether the requesting country has satisfied the requirements listed in the extradition treaty.⁴⁸ When an extradition court finds that written portions of a treaty are ambiguous and subject to multiple meanings, the court is tasked with interpreting those ambiguous terms. The interpretation of treaty provisions highlights the relationship between the judiciary and the executive branches in enforcing the provisions of an extradition treaty. The executive branch “has authority to determine the interpretation of an international agreement to be asserted by the U.S. in its relations with other states,” but “[c]ourts in the U.S. have final authority to interpret an international agreement for purposes of applying it.”⁴⁹

The judiciary analyzes extradition treaties in the same manner that it analyzes contracts and statutes.⁵⁰ Courts begin their analysis of treaties by first examining the text of the treaty, or the four corners of the document.⁵¹ Much like the interpretation of statutes or contracts, “[w]hen interpreting a treaty, [courts] begin with the text of the treaty and the context in which the written words are used.”⁵² If the court finds that a treaty’s language is clear and unambiguous, the court will cease its analysis of the meaning of the words of the treaty and “apply the words of the treaty as written.”⁵³

When interpreting treaty provisions, courts may find that the treaty provisions, much like statutory provisions, are ambiguous. When courts encounter ambiguous provisions in treaties, they expand their scope of focus to incorporate intrinsic and extrinsic evidence to evaluate the text of the treaty “in light of its object and purpose.”⁵⁴ In understanding ambiguous terms, courts are meant to undertake an interpretation in a “ ‘holistic endeavor’ and must account for the statute’s ‘full language, text, language as well as punctuation, structure and subject matter.’ ”⁵⁵ In ascertaining ambiguous terms in a treaty, courts “may look . . . to the history of the treaty, the negotiations, and the practical construction adopted by the parties.”⁵⁶

One of the most important tools of extradition treaty interpretation used by the judiciary, and which scholars and courts have both criticized and utilized since the Supreme Court issued its opinion in 1933, is the extradition treaty interpretation principle established in Factor v. Laubenheimer.⁵⁷ Factor v. Laubenheimer involved an extradition request by the United Kingdom for Factor, who had allegedly committed a financial crime there and fled to Illinois. Factor argued that because Illinois did not have a comparable criminal statute, the extradition treaty between the United States and the United Kingdom could not be used to extradite him.⁵⁸ In one of the most influential and long-standing guides on how courts should interpret treaties, the court in Factor considered whether a broad or narrow interpretation of a treaty should be utilized by an extradition court:

In choosing between conflicting interpretations of a treaty obligation, a narrow and restricted construction is to be avoided as not consonant with the principles deemed controlling in the interpretation of international agreements. Considerations which should govern the diplomatic relations between nations, and the good faith of treaties, as well, require that their obligations should be liberally construed so as to effect the apparent intention of the parties to secure equality and reciprocity between them. For that reason if a treaty fairly admits of two constructions, one restricting the rights which may be claimed under it, and the other enlarging it, the more liberal construction is to be preferred.⁵⁹

This construction—that when faced with two possible constructions of an ambiguous term in a treaty, courts should broaden the interpretive scope of the extradition treaty in favor of the executive branch—is referred to as the default rule of extradition treaty interpretation.⁶⁰ This rule has been used to argue that, as the purpose of the extradition treaty is to extradite individuals, courts should interpret treaty provisions broadly to fulfill that purpose.⁶¹ This principle has been articulated by various courts since 1933, such as the Sixth Circuit in the 2016 case Martinez v. United States, in which the court stated that “ambiguity in an extradition treaty must be construed in favor of the ‘rights’ the ‘parties’ may claim under it,” and in extradition proceedings, the parties are the countries and the “right the treaty creates is the right of one country to demand the extradition of fugitives in the other country,” as “[t]he point of an extradition after all is to facilitate extradition, as any country surely would agree at the time of signing.”⁶²

The judiciary’s deference to the executive’s interpretation of international treaties is noteworthy.⁶³ This deference stems from the executive branch’s role in foreign relations. Since United States v. Curtiss-Wright Export Corporation in 1936, the U.S. Supreme Court has codified the executive branch’s power in foreign relations by proclaiming the “exclusive power of the President as the sole organ of the federal government in the field of international relations.”⁶⁴ Later, in Kolovrat v. Oregon, the Supreme Court stated that “[w]hile courts interpret treaties for themselves, the meaning given them by the departments of government particularly charged with their negotiation and enforcement is given great weight.”⁶⁵ Additionally, courts will consider how the parties to the treaty constructed and interact with the treaty, as such behavior informs its application.⁶⁶

There are foreign policy concerns when courts are called to interpret extradition treaties. Courts are likely to give deference to an executive branch’s interpretation given its role “in diplomatic negotiation with other countries, on the ground that the U.S. should speak with one voice, than to one adopted by the Executive in relation to a case before the courts, especially where individual rights or interests are involved.”⁶⁷ There are also concerns that the executive branch, in finding that an extradition request is inadequate, should not “expand the obligations of another nation in a treaty.”⁶⁸ In 2020, the Supreme Court noted that it has “never provided a full explanation of the basis for [its] practice of giving weight to the Executive’s interpretation of a treaty. Nor [has it] delineated the limitations of this practice.”⁶⁹ As it is generally understood that United States’ compliance with extradition treaties is beneficial to U.S. foreign policy, the executive branch’s interpretation of an extradition treaty that favors a relator’s extradition has considerable influence in extradition court proceedings.⁷⁰

D.Due Process in the Extradition Process

Relators who are physically present in the United States and who a foreign government wishes to extradite are subject to the Due Process Clause of the Fifth Amendment of the U.S. Constitution.⁷¹ Relators are also the beneficiaries of due process under international law. It is worthwhile to explore the domestic and international understandings of due process: both understandings of due process apply to extradition proceedings that occur in the United States.

Procedural due process “asks whether the government has followed the proper procedures when it takes away life, liberty or property.”⁷² Due process is contextually dependent on the type of liberty interests over which a court or agency is ruling.⁷³ In considering due process claims, courts, depending on their context, are often compelled to balance the following factors established by the Court in Mathews v. Eldridge:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.⁷⁴

Although the extradition process is neither a criminal proceeding nor a trial, the extradition process affects relators’ liberty interests; relators do enjoy Constitutional rights, albeit in a different capacity than those protections the courts recognize for criminal defendants.⁷⁵ Given that extradition in the United States is a “bifurcated procedure” between the executive and judiciary branches, extradition is considered an executive process under the executive branch of the government⁷⁶, and the judiciary is tasked with applying its expertise in statutory interpretation, evidentiary requirements, and understandings of probable cause as well as other related legal concepts.⁷⁷ The Ninth Circuit has found that extradition courts have discretion in conducting their proceedings—as relators are not criminal defendants in United States criminal courts, the courts do not need to follow the procedural safeguards enforced in criminal proceedings, such as the Federal Rules of Civil Procedure and the Federal Rules of Evidence.⁷⁸ Rather, their role is limited to “ensur[ing] that the government complies with the requirements of the extradition treaty and the extradition statute.”⁷⁹ The judiciary is mindful that the extradition process is an executive function, and thus attempts to balance the interests of the relators with the interests of the executive branch.⁸⁰

The Due Process Clause is applicable to the liberty interests of relators, as “the consequences of extradition—the forceful surrender of a relator to a foreign country for criminal prosecution and imprisonment—affect” a relator’s Constitutional rights.⁸¹ This is because “[r]elators face tremendous liberty losses” upon extradition, as the process is aimed at surrendering a relator to a foreign jurisdiction for criminal prosecution and imprisonment.⁸² Therefore, the court hearing the extradition case must ensure that the extradition proceeding comports with a relator’s right to due process “in a manner consistent with the Constitution.”⁸³

As the purpose and structure of an extradition hearing differs from those of domestic criminal and civil proceedings, courts have deemed that the amount of procedures, and therefore due process, owed to relators differs from the procedures that are owed to criminal defendants.⁸⁴ Unlike its application of the Mathews analysis to other categories of cases that involve the deprivation of liberty, extradition courts do not uniformly apply the Mathews analysis factors of due process to determine whether the relator has sufficient due process.⁸⁵ In reviewing challenges to the constitutionality of extradition proceedings, the judiciary has found that “the totality” of the proceedings conducted by both judicial and executive branch “comports with the requirements of the Fifth Amendment, in light of the substantial process afforded in the judicial phase and the executive’s broad discretion to decide matters of foreign policy.”⁸⁶ Courts find that the procedural requirements of 18 U.S.C. § 3186 and § 3184 are sufficiently protective of a relator’s due process rights and commensurate with the due process owed to relators to ensure that a relator is not extradited entirely “by Executive whim,” as the executive branch exercises its discretion “only if the magistrate determines that there is ‘evidence sufficient to sustain the charge under the provisions of the proper treaty.’ ”⁸⁷ The D.C. District Court rationalized the adequacy of the procedural due process given to relators in extradition proceedings:

[T]he risk of an erroneous deprivation absent an additional hearing conducted by the State Department and the furnishing of any unclassified documents relied upon is minimal . . . given [the relator’s] active role . . . in developing the record in his judicial proceedings and challenging the key determinations there, not to mention his ability to supplement the record in whatever way he wished before the State Department. Further, requiring the State Department to provide the additional opportunities for participation . . . would unnecessarily overtax Department resources without meaningfully expanding the scope of information considered and risks chilling the Department’s ability to freely obtain information and assurances from relevant foreign governments, which might be less willing to speak frankly if the information disclosed was not kept confidential.⁸⁸

International law also affords due process rights to relators in the extradition process; due process is a fundamental human right under customary international law.⁸⁹ For context, customary international law can be defined as the “general and consistent practice of states followed by them from a sense of legal obligation.”⁹⁰ The United States has signed the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Convention on Torture, the Hostage Convention, and, along with “other treaties, the United States has agreed, with certain reservations, to be bound by their provisions and to incorporate them into U.S. law.”⁹¹ Within the United States, the federal judiciary has “applied rules of customary international law in countless cases since the founding of the Republic . . . treating customary international law rules in the same manner as U.S. treaties and other international agreements.”⁹² The United States is bound by customary international law on its treatment of human rights, as human rights standards “are binding [on the federal judiciary] as jus cogens (i.e., overriding principles) under international law”—human rights treaties “may provide guidance in determining contemporary human rights norms that should inform a court’s decisions in extradition proceedings.”⁹³ For the most part, as the judiciary has “treated rules of customary international law as rules of federal law,” the judiciary is compelled to uphold customary international law.⁹⁴

On the other hand, the principles of international law are made up of “rules of international law” that are “accepted as such by the international community of states . . . by derivation from general principles common to the major legal systems of the world.⁹⁵ Under principles of customary international law, due process is defined as “procedural norms . . . that are applicable to . . . limit governmental powers”—these norms include “[t]he right of equal access to courts, the right to equal treatment of litigants, the right to an effective remedy and the right to a fair hearing.”⁹⁶ Other aspects of the due process under international law include that “there shall be no common interest between the parties and the judge”⁹⁷ and that each party has a “reasonable opportunity of presenting [their] case . . . under conditions which do not place [them] at substantial disadvantage vis-à-vis [their] opponent.”⁹⁸ Importantly, as explored in Part III, another element of international due process is the “assurance that ‘the judiciary [is not] dominated by the political branches of government or by an opposing litigant . . . .’ ”⁹⁹ Charles T. Kotuby, Jr. and Luke Sobota, in General Principles of Law and International Due Process, outline the human rights conventions that affirm the obligation of sovereign nations to uphold the fundamental due process right of individuals:

The Inter-American Convention on Human Rights (IACHR)—building upon the principles set forth in “the Charter of the Organization of American States, in the American Declaration of the Rights and Duties of Man, and in the Universal Declaration of Human Rights”—imposes upon States the obligation to “respect the rights and freedoms” it enshrines “without any discrimination.” Included is the “right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law.” The European Convention for the Protection of Human Rights and Fundamental Freedoms follows a similar pattern, providing . . . that “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”¹⁰⁰

Within the U.S., the intersection of extradition and due process is especially poignant under the rule of non-inquiry. Non-inquiry is the concept that the judiciary is not compelled to inquire into the adequacy of the foreign proceedings to ensure that the proceedings in the foreign jurisdiction preceding the extradition request comport with “fundamental rights to due process”—this rule raises concerns about the judiciary’s role in complying with international due process requirements when responding to extradition requests from foreign jurisdictions.¹⁰¹ In reviewing the procedures of the requesting country, the Ninth Circuit has said that it gives “credence to foreign proceedings” and that it declines “to rule on the procedural requirements of foreign law out of respect for other nations’ sovereignty.”¹⁰² In doing so, the Ninth Circuit has understood the risk of “erroneous interpretation” of a foreign country’s legal system.¹⁰³ Courts generally see that the Secretary of State’s understanding of the treaty and of foreign criminal procedure should be considered as part of its considerations when interpreting a treaty document. This becomes especially important when questions regarding the foreign country’s political intentions for extraditing individuals are brought before the U.S. judiciary.

Relators often argue that the extradition proceedings lack due process even though the extradition process is not considered a full-fledged criminal trial.¹⁰⁴ These complaints relate to the statutes of limitations of crimes committed in foreign countries, the discretion of the court to consider whether the requesting country might torture the relator, the admissibility of hearsay evidence in extradition proceedings, and other findings that the procedure owed to relators is inadequate.¹⁰⁵ However, relators have little redress when they argue that extradition proceedings are violative of due process, as the standard for finding a procedural defect in the process is high: this is due to the unique nature of an extradition proceeding as a proceeding akin to a preliminary hearing. The judiciary often finds that extradition processes should not be encumbered by more procedure.¹⁰⁶ The judiciary has found that,

[S]o long as the United States has not breached a specific promise to an accused regarding his or her extradition, and bases its extradition decisions on diplomatic considerations without regard to such constitutionally impermissible factors as race, color, sex, national origin, religion, or political beliefs, and in accordance with such other exceptional constitutional limits as may exist because of particularly atrocious procedures or punishments employed by the foreign jurisdiction, those decisions will not be disturbed.¹⁰⁷

Accordingly, as the discretion to extradite lies with the executive branch, “[t]he judiciary has no authority to impose requirements on the decision-making process that go beyond the scope of what is required under the Constitution.”¹⁰⁸

II. INTERPRETING THE “CHARGING DOCUMENT”

A.Overview of the Circuit Split

Part II of this Note explores the difference in treatment of the phrase the “charging document” which the U.S. has included in at least twenty-eight bilateral extradition treaties.¹⁰⁹ Part I outlined the history and reasoning behind the different tools of interpretation courts utilize in interpreting extradition treaties, and the due process rights that relators are afforded in the extradition process. Part II will cover how these interpretation tools have been implemented by the judiciary in its treatment of extradition treaties that include “the charging document” requirement in 2023.

In 2023, the Ninth and Fourth Circuits were charged with interpreting the phrase “the charging document” in two bilateral extradition treaties: the Ninth Circuit analyzed a bilateral extradition treaty between the U.S. and Peru, and the Fourth Circuit analyzed a bilateral extradition treaty between the U.S. and Lithuania.¹¹⁰ These cases, Vitkus v. Blinken and Manrique v. Kolc, involved foreign nationals residing in the U.S. who were wanted by foreign countries for crimes allegedly committed by the foreign nationals in their respective countries of nationality. Both cases rose to the federal circuit courts after the foreign nationals petitioned for stays and preliminary injunctions on their extradition requests. The relators in each case argued that they were not extraditable as the foreign countries did not provide “the charging document,” a document listed under the required documents section of the relevant extradition treaties that a requesting country must provide in its extradition request. The two courts diverged over how to interpret the phrase, or even whether there was a need to interpret the phrase and apply the default rule. The implications of this divergence will be explored in Part III of this Note.¹¹¹

B.Manrique v. Kolc

In 2023, the Ninth Circuit reviewed a petition filed by former president of Peru, Alejandro Toledo Manrique,¹¹² to stay Toledo’s extradition from the U.S. to Peru while appealing the denial of his petition for writ of habeas by the U.S. District Court for the Northern District of California.¹¹³ Peruvian prosecutors sought to extradite Toledo to Peru from the United States after they alleged that Toledo had committed money laundering and collusion, specifically “taking $20 million in bribes from Odebrecht, a giant Brazilian construction company that has admitted to U.S. authorities that it bribed officials to win contracts throughout Latin America for decades.”¹¹⁴ The Peruvian investigators had investigated or put on trial almost every living former president of Peru while conducting sweeping investigations of those who might have participated in the bribery with the Odebrecht company.¹¹⁵

Peru brought the accusations against Toledo in “two Prosecutor’s Decisions, documents that summarize the ongoing investigation, and in an Acusación Fiscal, a document produced at the end of an investigation that lays out the crimes allegedly committed and supporting evidence.”¹¹⁶ After the Supreme Court of Justice of Peru approved an extradition request for Toledo, the Peruvian government filed an extradition request with the United States in 2018 and sent a supplemental request in August 2020.¹¹⁷

In July 2019, a United States federal prosecutor filed a criminal complaint against Toledo, and two years later, a United States magistrate judge in the U.S District Court for the Northern District of California certified Toledo’s extradition.¹¹⁸ Separately, Toledo filed suit in the D.C. District Court to enjoin the U.S. Department of State from extraditing him to Peru, claiming that his extradition was politically motivated and that the decision to extradite him violated due process because the Secretary of State “did not ‘disclose the unclassified bases for its decisions’ or ‘afford Dr. Toledo and his counsel an opportunity to rebut those bases in a full and fair exchange of views.’ ”¹¹⁹ The District Court rejected Toledo’s arguments and wrote that the Secretary of State’s decision to extradite Toledo was based on considerations of international law on political extradition and that Toledo had been afforded adequate due process in the proceedings prior to the Secretary of State’s decision to extradite Toledo.¹²⁰ Following multiple appeals, the Ninth Circuit heard Toledo’s appeal of the denial of his writ of habeas corpus in April 2023.¹²¹

Toledo asserted that “he was not ‘charged with’ an extraditable offense because the extradition treaty requires a formal charge” and that “the ‘charging document’ Peru submitted was insufficient.”¹²² In reviewing Toledo’s appeal, the Ninth Circuit took a holistic approach to Toledo’s assertions regarding the charging document requirement within the United States-Peru Extradition Treaty. First, the Ninth Circuit analyzed the purpose of the United States-Peru Extradition Treaty, noting that “Article I of the United States-Peru Extradition Treaty provides for extradition of ‘persons whom the authorities in the Requesting State have charged with, found guilty of, or sentenced for, the commission of an extraditable offense.’ ”¹²³ Next, the Ninth Circuit provided background on Peruvian criminal procedure:

[A] Peruvian criminal proceeding has three phases: (1) preliminary or investigative, (2) intermediate or examining, and (3) trial. First, during the investigative phase, a prosecutor examines the facts and presents allegations to a judge of the Preliminary Investigation Court. When the investigation ends, the prosecutor must decide whether to dismiss the case or to issue an Acusación Fiscal and then seek a formal charge. Once a formal charge is sought, the prosecutor cannot further investigate. Second, during the examining phase, a judge of the Preliminary Investigation Court holds a preliminary hearing, during which the accused may object and present exculpatory evidence. At the end of this hearing, if the judge believes a formal charge is warranted, the judge issues an Orden de Enjuiciamiento. Finally, if an Orden de Enjuiciamiento issues, the parties proceed to a trial presided over by the Criminal Judge or the President of the Collegiate Court.¹²⁴

As Peru had issued an Acusación Fiscal in the corruption case against Toledo, the parties fought over “whether the accusations contained in the Acusación Fiscal suffice to ‘charge’ Toledo ‘with’ an extraditable offense under the Treaty.”¹²⁵ Toledo argued “that the United States-Peru treaty . . . requires ‘a copy of the charging document’ in addition to an arrest warrant.”¹²⁶ In rebutting Toledo’s assertion that a charging document was necessary and was not satisfied by the Acusación Fiscal, the U.S. government supported its argument by noting that the provision “charged with” elsewhere in the treaty was sufficient for the extraditing country to argue that a relator could be extradited without providing any specific document or official charge—therefore, the Acusación Fiscal satisfied the charging document.¹²⁷

The Ninth Circuit looked at the text of the treaty to determine the significance of the “charging document” provision within the United States-Peru Extradition Treaty in its entirety. The court found that the addition of “the charging document” was not necessary to find that Peru satisfied the requirements of the extradition treaty, finding support in Emami v. United States District Court for the Northern District and In re Assarsson. In both Emami and Assarsson, there was no “formal charge” listed in the U.S.-Sweden and U.S.-Federal Republic of Germany treaties to find that a relator might be extraditable, and as such, the requirement that there be “formal charges” in the foreign jurisdiction before the foreign country filed an extradition request was not a necessary requirement to find that the relators were extraditable.¹²⁸ The court utilized these cases even though neither case dealt with a “charging document” requirement. In Toledo’s case, the court found that “the Treaty does not mention formal charges or the Orden de Enjuiciamiento anywhere. And the requirement of a ‘copy of the charging document’—which specifies no particular document—does not define the level of formality [they] should read into ‘charged with.’ ”¹²⁹ The court found that such a reading would allow the Acusación Fiscal to be permitted as a “charging document” given that language elsewhere in the U.S.-Peru treaty equated “charged with” to “sought for prosecution,” and that the documents indicating an individual was “sought for prosecution” could encompass documents submitted before the Orden de Enjuiciamiento in Peruvian criminal proceedings—that is, the Acusación Fiscal—therefore satisfying the treaty’s requirements.¹³⁰

The Ninth Circuit furthered its analysis, finding that if “the charging document” was ambiguous, then the treaty’s drafting history and judicial precedents would assist the court in determining how to interpret the provision. The court stated that “charged with” could be broadly interpreted to mean any warrant-backed accusation presented by the Peruvian or United States governments, essentially making “the charging document” requirement null.¹³¹ The court looked to the Technical Analysis of the United States-Peru Extradition Treaty, which stated:

[T]he negotiating delegations intended that “charged” persons include those who are sought for prosecution for an extraditable offense based on an outstanding warrant of arrest, regardless of whether such warrant was issued pursuant to an indictment, complaint, information, affidavit, or other lawful means for initiating an arrest for prosecution under the laws in Peru or the United States.¹³²

The court further noted that “[their] rules of interpretation militate against reading in a requirement of particular formal charges where the treaty makes no such specification.”¹³³ Critically, the Ninth Circuit applied the default rule of treaty interpretation to Toledo’s case. Utilizing support from Supreme Court precedents, the court found that it should defer to the government agencies who were charged with negotiating and enforcing the treaty, as “such a construction enlarges the rights of the signatories and respects the interpretations given by [the] Executive Branch and the Peruvian government.”¹³⁴ The court found that because the treaty does not require that the requesting country provide formal charges to satisfy the extradition treaty’s requirements when submitting an extradition request, the Acusación Fiscal was sufficient to satisfy “the charging document” mandate. Moreover, in analyzing Peruvian criminal procedure, the court found that the Acusación Fiscal was a “charging document” as it provided a plethora of evidence, serving “the important purpose in the Peruvian system of signaling the end of discovery and moving the case from the prosecutor’s office to a judge of the Preliminary Investigation Court.”¹³⁵

In summary, the Ninth Circuit found that “the charging document” was an ambiguous term; properly interpreting it required extrinsic evidence and consideration of the two sovereign countries’ rights. Accordingly, the court relied on the draft treaty provisions and the Peruvian government’s standards around criminal procedure to analogize the Acusación Fiscal to a document that would satisfy “the charging document” requirement of the United States-Peru Extradition Treaty. It did so under the standard default rule. Because the Treaty was meant to expand the rights of the parties involved (in this case, the United States and Peru) to encourage extradition and the Treaty did not specify what document was required to extradite Toledo under the “charging document” requirement, Acusación Fiscal could be construed to be the charging document. However, as mentioned earlier in this Note, the Ninth Circuit had historically found that this approach might be prone to error.¹³⁶

Notably, as previously discussed, the Ninth Circuit utilized two cases regarding two treaties which did not include “the charging document” requirement to find that the Secretary of State had satisfied the requirements to extradite Toledo. By doing so, the court diminished the requirement that Peru provide a “charging document” when it found that the treaty had allowed for the extradition of individuals who were simply “charged with” extraditable offenses. Ultimately, this approach to “the charging document” requirement in the United States-Peru Extradition Treaty hints at the judiciary’s use of the default rule to ensure that the rights of sovereign nations are not infringed upon when they file an extradition request with the United States. After the Ninth Circuit’s decision, Toledo surrendered to be extradited to Peru in April 2023.¹³⁷

C.Vitkus v. Blinken

In 2023, the Fourth Circuit heard an appeal of a denial of preliminary injunction brought by Darius Vitkus, a citizen of the Republic of Lithuania.¹³⁸ Vitkus sought to prevent Lithuania from extraditing him for crimes he allegedly committed in 2008 and 2009 by filing for preliminary injunctive relief and a petition for writ of habeas corpus.¹³⁹ Vitkus owned a real estate business in Lithuania, and after it fell into bankruptcy proceedings, the Lithuanian authorities investigated him for various financial crimes between 2008 and 2010.¹⁴⁰ Notably, following the Lithuanian authority’s summons for questioning, Vitkus testified “that the Lithuanian police officers tied him to a chair, beat him, deprived him of water . . . , burned him with cigarettes” and asked about his political activities.¹⁴¹

Vitkus received three “Notification of Suspicion” documents during Lithuania’s criminal investigations, which all separately informed Vitkus that (1) he was a suspect in the Lithuanian authorities’ investigation of him, (2) he allegedly violated specific “Lithuanian code provisions,” and (3) he had engaged in “suspected criminal conduct.”¹⁴² After Vitkus left Lithuania, the Lithuanian authorities issued two orders of arrest for Vitkus.¹⁴³ The Lithuanian prosecutors created a document called a “Decision to Recognize D. Vitkus as a Suspect,” which “described Vitkus’s suspected criminal conduct and identified the implicated provisions of the Lithuanian criminal code”—this was allegedly decided based on the evidence the Lithuanian prosecutor gathered.¹⁴⁴ After moving to the United States, Vitkus applied for asylum and protection under the Convention Against Torture given his treatment by the Lithuanian government, which the Board of Immigration Appeals certified.¹⁴⁵

In May 2015, the Lithuanian government requested that the United States extradite Vitkus to Lithuania, advising the Department of State that Vitkus was a suspect in a criminal investigation and “wanted for prosecution in Lithuania in connection” with the various criminal investigations.¹⁴⁶ Lithuanian prosecutors provided supporting documents for their allegations against Vitkus that “summarized evidence gathered during the three investigations, along with copies of three orders for Vitkus’s arrest issued in connection with those investigations.”¹⁴⁷ Lithuania provided three Notifications of Suspicion and two Suspect Decisions to the United States, which later became the subjects of debate in the Secretary of State’s argument for extraditing Vitkus.¹⁴⁸

In response to Lithuania’s request, “the Secretary of State filed an extradition complaint in the Southern District of Florida, where Vitkus was then residing,” and extradition proceedings commenced in the Southern District of Florida.¹⁴⁹ During the proceeding, Vitkus argued that the Notifications of Suspicion and Suspect Decision did not “satisfy the charging document mandate” of the United States-Lithuania Extradition Treaty.¹⁵⁰ Vitkus also utilized the evidence provided by a Lithuanian attorney “who testified that, under Lithuanian law, only one document—an ‘indictment’—can be a ‘charging document’ for purposes of the charging document mandate.”¹⁵¹ The extradition court found that “deference was warranted to the Treaty interpretation of the Secretary of State and supported by Lithuania” and “ruled that the Notifications of Suspicion and Suspect Decisions ‘are sufficient to meet the requirements of’ the charging document mandate.”¹⁵² The court analyzed the extradition treaty between Lithuania and the United States, and utilized the executive branch’s argument to deny Vitkus’s argument that Lithuania did not comply with “the charging document” requirement of the extradition treaty:

The Secretary argued that the only purpose of the charging document mandate is to identify the charges for which Lithuania seeks to extradite Vitkus, and that the mandate does not require the initiation of any criminal charges. According to the Secretary, the charging document mandate is satisfied by the Notifications of Suspicion and Suspect Decisions. The Secretary supported that position with an affidavit of an attorney at the Department of State . . . and with a letter from a Lithuanian official called the Prosecutor General . . . . The State Department Affidavit averred that the Notifications of Suspicion and the Suspect Decisions are sufficient to satisfy the charging document mandate. And the Prosecutor General Letter maintained that the Notifications of Suspicion and Suspect Decisions ‘would be the equivalent of the charging documents referred to in’ the charging document mandate. The Letter also asserted that the proof required to identify a person as a suspect—and thus issue a Notification of Suspicion or Suspect Decision—‘should not be of the same level as necessary to substantiate the judgment of conviction or bringing charges (this occurs at a later stage of the criminal proceedings).’ ”¹⁵³

In a separate procedure following his transfer to Virginia, Vitkus filed a petition for a writ of habeas corpus and sought declaratory and injunctive relief in the Eastern District of Virginia. The court rejected Vitkus’s charging document argument, as it stated “that it gave ‘great weight’ to the Treaty interpretation presented by the Secretary of State,” and found that, along with the affidavits provided by the State Department and Prosecutor, the charging document mandate “can be satisfied by a document identifying ‘the violations of Lithuanian law that form the basis of Mr. Vitkus’s extradition, and . . . describ[ing] the facts underlying those alleged violations.’ ”¹⁵⁴

The Eastern District of Virginia summarized the Secretary of State’s argument in support of Vitkus’s extradition:

Lithuania has complied with the charging document mandate. Similar to Vitkus, the Secretary maintains that the language of the charging document mandate is plain and unambiguous. The Secretary maintains, however, that the charging document mandate does not require production of any particular type of charging document, and that it does not demand production of an indictment or something similar. According to the Secretary, the charging document mandate only requires the Requesting State to produce documents that sufficiently detail the alleged criminal violations and conduct, such as the Notifications of Suspicion and Suspect Decisions. The Secretary argues that the federal courts have consistently interpreted other treaties made by the United States to allow for extradition of persons who have not actually been criminally charged. Finally, the Secretary insists that, if the relevant text of the Treaty is ambiguous, his proposed construction thereof—that the charging document mandate requires only a document detailing suspected criminal conduct—adheres to the Treaty’s requirements and is entitled to deference.¹⁵⁵

The Fourth Circuit overturned the Eastern District of Virginia’s judgment. The majority of the Fourth Circuit found that “the Secretary’s construction of the charging document mandate does not ‘follow from the clear Treaty language’ ” and, therefore, the district court erred in utilizing it in its decision to reject Vitkus’s petition for a preliminary injunction.¹⁵⁶ The Court of Appeals for the Fourth Circuit first looked to the text of the treaty, finding that “if the [treaty’s] textual meaning is plain and cannot reasonably bear the government’s construction, then [the court] must reject that construction.”¹⁵⁷ The court looked to Article 8 § 3 of the Treaty, which requires that the Requesting State produce “a copy of the charging document.”¹⁵⁸ The Fourth Circuit noted that the “Secretary of State is not entitled to extradite Vitkus unless Lithuania first produces . . . a copy of ‘the charging document.’ ”¹⁵⁹ Looking at the grammatical structure of the phrase “the charging document,” the court found that the treaty required a “discrete document that initiates criminal charges” and that “the charging document mandate is plain and unambiguous, and it cannot be fulfilled by some document (or set of documents) that fails to perform the charging function—even if it or they contain similar information to ‘the charging document.’ ”¹⁶⁰

Moreover, the court utilized extrinsic evidence and looked to the Federal Rules of Criminal Procedure to analyze the “charging document” requirement in the treaty between the United States and Lithuania and analogize documents that the Lithuanian prosecutors produced in their investigation of Vitkus to relevant documents in U.S. criminal procedure.¹⁶¹ The Fourth Circuit found that the charging document mandate required that a requesting country produce a document “that performs the same function as an indictment, information, or complaint” in the United States.¹⁶² The court found that the documents that the Lithuanian government produced were akin to the “subject letters” and “target letters” which are used by federal prosecutors in the United States to inform individuals that they “are either a ‘subject’ or a ‘target’ of a federal criminal investigation.”¹⁶³ The Fourth Circuit summarized their findings on the matter by stating:

Critically, those identified as federal “subjects” and “targets” of criminal investigations have not been charged—unless and until they become defendants by virtue of an indictment, an information, or a complaint. The Notifications of Suspicion and Suspect Decisions relied on by the Secretary of State did not initiate criminal charges against Vitkus. They simply characterize him as a suspect, and thus do not satisfy the plain and unambiguous language of the Treaty’s charging document mandate.¹⁶⁴

The court also relied on the evidence provided by the Lithuanian attorney supporting this argument, noting that the documents provided by the Lithuanian government “remain in a pretrial investigation stage” and that there is a difference “between the sufficiency of evidence needed to confer the status of ‘suspect’ and that needed to ‘bring[] charges,’ which ‘occurs at a later stage of the criminal proceedings.’ ”¹⁶⁵ The Fourth Circuit acknowledged the Secretary of State’s argument that the United States had extradited individuals who had not been formally charged in the requesting country prior to the extradition request.¹⁶⁶ The Fourth Circuit compared the United States-Lithuania treaty to other treaties which show either the absence of “the charging document” requirement—in a form of expressio unius interpretation—or contain the requirement that requesting countries produce “a copy of the charging document, if any” to indicate the importance of a specific charging document in extradition proceedings between Lithuania and the United States.¹⁶⁷ Additionally, the Fourth Circuit found that the inclusion of the charging document requirement was intentional, and that “the Treaty language agreed to by the parties must be adhered to and carry the day.”¹⁶⁸ The Fourth Circuit stated that Lithuania could not proceed with the extradition without producing the charging document, as Lithuania “cannot produce ‘the charging document’ when no criminal charges have been filed.”¹⁶⁹

The Fourth Circuit explicitly rejected the Ninth Circuit’s statement that “the charging document mandate ‘makes no difference’ ” given its arguments regarding the grammatical structure of the phrase, the evidence provided by both parties, and the text of the treaty.¹⁷⁰ The Fourth Circuit also denied the Secretary of State’s interpretation of the treaty, arguing that as the charging document mandate was clear and unambiguous, the court “do[es] not owe deference to the Secretary.”¹⁷¹ In doing so, it found that the Notifications of Suspicion and Suspect Decisions produced by the Lithuanian prosecutors did not initiate criminal charges against Vitkus and were insufficient to satisfy the extradition treaty’s requirements.

Judge Quattlebaum, writing the dissenting opinion in Vitkus v. Blinken, highlighted the majority’s unwillingness to utilize the default rule. Judge Quattlebaum noted that “the district court’s decision to side with the Secretary’s interpretation over Vitkus’ faithfully applies Supreme Court precedent requiring deference to the Secretary.”¹⁷² Judge Quattlebaum found that “the Secretary produced evidence supporting a broader interpretation of [the charging document] in the context of an international extradition treaty,” by providing context regarding the nature of the Lithuanian prosecutor’s documents in support of its extradition of Vitkus to Lithuania.¹⁷³ Judge Quattlebaum also appeared to be persuaded by an affidavit written by a State Department attorney, who noted that the treaty between Lithuania and United States includes provisions for extraditing individuals who are “sought for prosecution,” and “that a formal indictment cannot be sought under Lithuanian law until the prosecution receives Vitkus’ position on the notification of suspicion documents.”¹⁷⁴

Judge Quattlebaum found both the Secretary’s interpretation of the treaty and Vitkus’s interpretation of the treaty plausible.¹⁷⁵ He found that within the extradition treaty between the United States and Lithuania,

Article 8, the section setting forth the required documentation that must accompany an extradition request, refers to individuals ‘sought for prosecution.’ [W]hile . . . ‘charged with’ may suggest a formal charge, ‘sought for prosecution’ is broader. It could also be plausibly read . . . to include persons wanted for prosecution by Lithuania, such as Vitkus, who are wanted to stand trial for specific crimes, but for whom a formal charging document akin to the ones used in the United States may not have been issued.¹⁷⁶

In stating that the Secretary’s argument was plausible, Judge Quattlebaum utilized the default rule to argue that the judiciary should defer to the executive branch’s interpretation of a treaty when two possible interpretations are apparent.¹⁷⁷ Judge Quattlebaum found that the Ninth Circuit’s opinion in Manrique v. Kolc was persuasive, given that the Ninth Circuit similarly analyzed “the charging mandate” within the extradition treaty between the United States and Peru, and that Vitkus presented the same argument that Toledo presented to the Ninth Circuit.¹⁷⁸ Judge Quattlebaum noted that the court denied Toledo’s argument, as the treaty between Peru and the United States did not have explicit language mentioning “formal charges or the Orden de Enjuiciamiento,” and that the court “noted that documents submitted by Peru sufficiently identified the crimes that the petitioner was accused of and summarized the supporting evidence.”¹⁷⁹ Judge Quattlebaum also found the court’s deference to the executive branch indicative of how the treaty between Lithuania and the United States should be interpreted.¹⁸⁰ Finally, in concluding, Judge Quattlebaum stated, “the Secretary’s view that documents submitted by Lithuania satisfy the treaty’s charging document requirement is, at the very least plausible. When that is the case, we must defer to the Executive Branch’s interpretation of treaties that it has been charged with negotiating and enforcing.”¹⁸¹

Given the discrepancy between the foreign criminal court procedures in Peru and Lithuania, it is unclear whether the Fourth Circuit would have found that Peru satisfied the requirements of its extradition request. However, the Fourth Circuit’s opinion sheds light on the relationship between the executive and judiciary branches in extradition proceedings: it is apparent that the Secretary of State’s influence on extradition is substantial, especially when the judiciary analyzes treaty agreements. When the court in Vitkus v. Blinken acknowledged the default rule, it noted the competing interests at stake in Lithuania’s extradition request, namely the executive’s interest in maintaining foreign relations and the public’s interest “in seeing its governmental institutions follow the law.”¹⁸² Nevertheless, by determining that the “charging document” lacked the requisite ambiguity to apply the default rule, and accordingly, finding the executive’s interest did not outweigh the public’s interest in seeing the government follow the law, the Fourth Circuit upheld Vitkus’s fundamental due process rights by following the procedures outlined in the treaty as written and ensuring that the extradition proceeding was fair. The Fourth Circuit’s decision and its implications will be explored further in Part III.

III. INTERNATIONAL RELATIONS AND DUE PROCESS

A.Due Process and Treaty Interpretation

Although not directly stated in the circuit courts’ opinions, the analyses of the Lithuania-United States and Peru-United States extradition treaties shed light on the due process rights afforded to relators in the United States. The constitutional rights of relators, vested in them by their presence in the United States, are at odds with the executive branch’s responsibility to uphold relations between the United States and foreign nations.¹⁸³ The Fourth Circuit’s interpretation of “the charging document” upheld Vitkus’s due process rights—the Fourth Circuit deferred to the plain language of the treaty, and finding the executive branch’s argument unpersuasive, ensured that the executive’s influence did not overshadow the judiciary’s role in the extradition process.

Legal scholars have analyzed the intersection of due process and the extradition process, focusing on the rule of non-inquiry, the possibility of double jeopardy, the rule of specialty, and hearsay exceptions. Additionally, due process concerns intersect with the appropriateness of a court’s use of the default rule to interpret provisions of extradition treaties because broadening of the rights of the nations who sign extradition treaties affects the liberty of a person sought for extradition.¹⁸⁴

International due process encompasses “the assurance that ‘the judiciary [is not] dominated by the political branches of government,’ ”¹⁸⁵ and implicitly in accordance with this principle, the Fourth Circuit limited the executive’s political objective by enforcing its statutorily granted power to deny extradition. Powerless to change the structure of the United States-Lithuania treaty, the Fourth Circuit, in its decision in Vitkus v. Blinken, highlights not only the importance of specificity in extradition treaties but also the risk of harming an individual’s fundamental right to due process by giving undue deference to the executive branch’s interpretation of extradition treaties.

The default rule of treaty interpretation, as addressed in Part I of this Note, has been criticized by scholars for being outdated: it was formed before human rights concerns of relators were properly addressed by courts in considering whether to certify the relators’ extradition to the requesting country.¹⁸⁶ The judiciary implemented the default rule at a time when human beings were not subjects of international law—when the Supreme Court issued its Laubenheimer decision in 1933, sovereign countries, not individuals, were considered the beneficiaries of rights that flowed from treaties.¹⁸⁷ The default rule upheld the sovereign signatories’ right to extradite individuals wanted for prosecution, and continues to be upheld in some form by the Vienna Convention on the Law of Treaties.¹⁸⁸ The default rule continues to exert influence over the extradition interpretation process even as the human rights of relators have become a prominent and important consideration in the extradition process.¹⁸⁹

The Ninth Circuit’s understanding of Peruvian criminal procedure and the deference it afforded the United States executive branch bring to light the potential risks of applying the default rule. The court in Manrique v. Kolc considered the evidence provided by both the Peruvian prosecutors and the State Department to understand “the charging document” requirement in the Peru-United States Extradition Treaty, and in doing so, the court contextualized the requirements of the treaty.¹⁹⁰ This analysis favored the Secretary of State’s interpretation—as noted previously, extradition proceedings are distinct from criminal trials, and the judiciary may be comfortable with some bias in a proceeding that does not determine the guilt or innocence of the accused.¹⁹¹ However, the court’s deference to the Secretary of State’s interpretation of the “charging document” could be read as the court’s inclination to uphold foreign relations with Peru at the potential expense of Toledo’s liberty rights. As the court acknowledged, the risk of misinterpreting the requirements of the treaty was great: Toledo would be sent to Peru to face trial and be imprisoned, and his ability to file a habeas petition would be nullified by his presence in the Peruvian criminal justice system.¹⁹²

Vitkus v. Blinken implicitly renounces the traditional application of the default rule: the Fourth Circuit alludes to the pressure the executive branch places on the judiciary to comply with the Secretary of States’s understanding of a provision of a treaty—especially when the judiciary finds that the provision in question is clear and unambiguous.¹⁹³ In finding that “the charging document” mandate was clear and unambiguous in its requirement that a discrete document was to be produced by the Lithuanian government, the Fourth Circuit protected Vitkus from a questionable extradition request when it found that the treaty required that the requesting country produce a specific document charging him with a crime. By doing so, the Fourth Circuit found clarity in the procedural requirements established in the extradition treaty and potentially upheld Vitkus’s Fifth Amendment due process rights. However, it is important to note that should the majority of the Fourth Circuit have found that “the charging document” requirement was an ambiguous provision in the treaty, then there would have been a possibility that the court would have applied the default rule.

The Fourth Circuit also implicitly respected principles of international law on due process by ensuring that the political branch did not dominate the proceeding by compelling the court to recognize its interpretation of “the charging document” requirement.¹⁹⁴ International due process requires that trials are “fair” and are not “dominated” by the political branch.¹⁹⁵ However, as discussed previously, extradition proceedings are not trials, and a challenge against an extradition proceeding for being “unfair” was notably discounted by a Nevada District Court in 2023 in Sridej v. Blinken, in which the court referenced two cases from the 19th and early 20th centuries to note that the extradition procedure did not require the formalities of other judicial proceedings.¹⁹⁶ This case also underscores contemporary federal judiciary’s deference to understandings of international law codified before the duties of upholding international due process became binding on the American judiciary. Accordingly, although Vitkus might have been able to raise that the executive branch’s interpretation of “the charging document” would not be “fair,” it would be unlikely to be held as a viable argument against the certification of his extradition by the judiciary.

The interpretive dissonance surrounding “the charging document” requirement could be remedied by diminishing deference to the executive branch in treaty interpretation: the judiciary is tasked with interpretation in the extradition process specifically because its legal acumen regarding interpretation is more developed than the executive branch’s legal acumen. By not affording as much deference to the Secretary of State’s interpretation of “the charging document” as the Ninth Circuit had afforded, the Fourth Circuit’s approach to interpreting the U.S.-Lithuania treaty was more consistent with its obligations under international law: it sought to provide a fair hearing to Vitkus and did not near the point of acting “at the whim” of the executive branch.

Another consideration for remedying this tension between the judiciary and executive branch, with some limitations, would be to include more specific language in bilateral extradition treaties regarding a sovereign nation’s criminal procedure. Although, as stated in Part I of this Note, the judiciary has no authority to alter bilateral extradition treaties that the United States executes with foreign governments, Vitkus v. Blinken exemplifies the kind of case that could incentivize the executive branch to negotiate extradition treaties that have specific language relevant to the parties’ criminal procedures. By doing so, the U.S. and a sovereign signatory to a bilateral extradition treaty could prevent interpretive friction in the United States judiciary and allow for more expeditious extradition processing. Specifying the documents that better ascertain the level of probable cause established in a foreign proceeding could not only protect relators from extradition that invades their constitutional and international human rights but also the judiciary from breaching rules of non-inquiry and incorrectly interpreting a foreign country’s criminal procedure.¹⁹⁷ However, this would not be a salve to the protection of international human rights of relators: a country without an independent judiciary could likely still satisfy the document requirement even if it were specified, and the risk of violating a relators’ due process rights might still be an issue, albeit in a different form than the one at issue in this Note.

B.Relevant Background

The two circuit opinions may also differ for reasons not explicitly stated by the published decisions. Although Toledo raised the possibility of maltreatment and suffering while awaiting trial in a Peruvian prison, his argument failed to trigger a humanitarian concern by the court.¹⁹⁸ Notably, courts in the United States may disavow the rule of non-inquiry should the relator raise the possibility of meeting human rights abuses by the requesting state in the event the extradition court certifies extradition—Toledo’s argument regarding his ill health does not align with the circumstances the court considers in extradition.¹⁹⁹ On the other hand, Vitkus’s testimony about his arrest in Lithuania does support a contention that he could be tortured should the U.S. certify Lithuania’s extradition request, given that while applying for asylum, the “Board of Immigration Appeals (the ‘BIA’) found in 2014 that Vitkus’s ‘credible testimony established that he was beaten, burned, and nearly asphyxiated by [Lithuanian] police officers, who inquired into his contributions to a political party.”²⁰⁰ The findings of the Board of Immigration Appeals did not preclude the extradition court from certifying Vitkus for extradition.²⁰¹ Vitkus’s torture in Lithuania—allegedly related to his political involvement in Lithuania with a political group called “the Russia party”²⁰²—may have implicitly prompted the court to consider that the Lithuanian criminal proceedings would violate Vitkus’s human rights upon returning to Lithuania. This concern might have informed the Fourth Circuit’s view that “the charging document” requirement was a clear and unambiguous requirement that Lithuania provide a discrete charging document.

C.Foreign relations and the interpretation of “the Charging Document” requirement

The United States uses extradition treaties to prevent U.S. citizens and non-U.S. citizens alike from utilizing the United States as a safe haven when they have committed crimes on foreign soil, and are tools used by the United States to uphold its relationships with foreign countries.²⁰³ The default rule of treaty interpretation supports the executive branch’s role of upholding its treaty obligations as the governmental body responsible for foreign relations. Extradition treaties are entered into by the executive branch in its process of conducting foreign relations, creating international agreements regarding extradition unifies countries in a common, collaborative law enforcement apparatus.²⁰⁴ There are many reasons for entering into a collaborative law enforcement apparatus, including “ensuring that fugitive criminals do not go unpunished for their alleged crimes, discouraging crime throughout the world, and protecting nations from fugitive criminals by eliminating the possibility of safe havens for fugitive criminals.”²⁰⁵ Allowing countries to extradite individuals strengthens the relationship between the two countries, while not cooperating with an extradition request, especially when issues regarding erroneous treaty interpretation arise, hampers international relations between the countries.²⁰⁶ When considering the factors for staying a pending appeal (“(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; “and (4) where the public interest lies”),²⁰⁷ courts have noted that noncompliance with extradition requests diminishes the “force” of extradition treaties, and that “[i]f other countries lose confidence that the United States will abide by its treaties, the United States risks losing the ability to obtain the extraditions of people who commit crimes here and flee to other countries.”²⁰⁸ This may be the reason why the Secretary of State, who ultimately decides whether to proceed with an extradition request once the court certifies a relator for extradition, does not often refuse to surrender those sought by a foreign country for prosecution.²⁰⁹

In denying Lithuania’s extradition request, the Fourth Circuit may have chipped at the United States’ relationship with the Lithuanian government by rejecting the default rule.²¹⁰ Although the U.S. government does not rescind the entire extradition treaty when the requestor country fails to extradite an individual, failing to extradite prohibits the flow of criminals between countries, and can encourage the impression that the U.S. can be held as a safe haven for criminals.²¹¹ Moreover, international comity would be ill-served by the uncertainty a requesting country may face when summoning an individual from the United States, should the relevant treaty have a “charging document” requirement.

CONCLUSION

As the two circuit court opinions in 2023 demonstrate, the default rule of treaty interpretation continues to influence the judiciary’s role in determining whether to certify a foreign nation’s extradition request. In the Ninth Circuit opinion in Manrique v. Kolc, the court was partial to the Secretary of State’s interpretation of “the charging document” requirement in its extradition of Toledo—the court found the “charging document” requirement to be relatively inconsequential in finding that the Peruvian government had satisfied its extradition request by providing an Acusación Fiscal. However, in Vitkus v. Blinken, the court was more dubious of the Secretary of State’s interpretation of the treaty and disagreed that the documents that the Lithuanian government had provided to extradite Vitkus satisfied the requirements listed in the U.S.-Lithuania Extradition Treaty.

By continuing to find opportunities to utilize the default rule in interpreting extradition treaties, the judiciary is more likely to impinge on the constitutional due process rights of relators in an effort to appease the executive’s concern with maintaining foreign relations with sovereign countries.²¹² The divergence in interpretation of “the charging document” highlights the possibility of two diametrically opposite outcomes for those who face extradition, with important implications: the removal of an individual from the United States to a requesting country, and therefore, the removal of the constitutional rights afforded to them when they are physically in the United States. Vitkus v. Blinken, in acknowledging the default rule, noted that although there is a legitimate public interest in extraditing criminals to the countries that request them, the executive’s obligations to follow the law should not be outweighed by its duty to maintain foreign relations; doing so honors the procedural safeguards written into a treaty.

The judiciary’s continued use of the default rule is in tension with the development of international human rights. Manrique v. Kolc embodies the risk to internationally recognized due process rights when courts cite to the default rule of treaty interpretation: the court in Manrique appeared to interpret “the charging document” to conciliate the executive branch. Toledo is not the only relator who has argued that the extradition process did not comport with due process: relators have raised arguments about various components of the extradition process that violate fundamental due process rights. As precedents almost require that the judiciary does not consider these arguments, the judiciary should gradually reduce the weight of the default rule of treaty interpretation so that extradition proceedings align more closely with the fairness and juridical equality requirements of the fundamental human right to due process.

Because the United States is a party to at least twenty-eight bilateral extradition treaties that contain “the charging document” requirement, arguments as to its ambiguity will likely arise again. Accordingly, to better uphold the due process rights of relators, courts should defer to the executive branch and the plain text of the relevant extradition treaty proportionally to ensure that decisions are in line with customary international law on due process. By critically analyzing the default rule, the courts will be better equipped to uphold their obligations to the rights of relators: rights granted by the Constitution and by international law on the fundamental right to due process.

98 S. Cal. L. Rev. 761

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Jacob M. Karlin*

* Executive Senior Editor, Southern California Law Review, Volume 98; J.D. Candidate 2025, University of Southern California Gould School of Law; B.A. 2017, Science in Society Program, Wesleyan University. All views and conclusions expressed in this Note are solely my own and do not express the opinions or positions of my employer. Many thanks to Professor Marcela Prieto for her invaluable guidance throughout the drafting process. I also want to thank the talented Southern California Law Review staff and editors for their work throughout the publication process.

A Whole-of-Government Approach to Protect Unaccompanied Children from Labor Exploitation

July 2025July 2025Charlie Murphy*

A sharp rise in illegal child labor and an influx of unaccompanied migrant children into the United States combined to dominate headlines in 2023. Despite federal authorities placing migrant children in sponsor care, reports detailed such children being exploited in hazardous occupations across the country, with some losing their lives. An aging patchwork of federal immigration and labor laws and underfunded enforcement agencies have left an incredibly vulnerable subset of children at risk of exploitation or worse, and congressional action is needed to ensure that sponsored children are properly cared for and kept out of hazardous workplaces. While the federal government’s processing of unaccompanied children and illegal child labor have been separately examined by scholars, there is a glaring lack of scholarship on how the gaps in the immigration system and federal labor law combine to put unaccompanied minors at a greater risk of labor exploitation. This Note argues that the federal government must comprehensively update existing immigration and labor laws and increase interagency coordination to lower the risk of labor exploitation for unaccompanied children. If the United States wants to fulfill a humanitarian mission of caring for unaccompanied children, it must take responsibility for every child’s wellbeing throughout their immigration journey by taking a whole-of-government approach to the problem.

Introduction

News reports broke midway through the Biden presidency detailing shocking and troubling findings of migrant children working in punishing and dangerous jobs across the United States in violation of federal law. One report detailed the experience of a migrant child named Antonio, a fourteen-year-old who had left his home in Guatemala and made the perilous trek north to the United States.¹ After arriving at the U.S. border alone, the U.S. government placed Antonio into its custody in a shelter for several weeks until a former neighbor residing in Florida agreed to sponsor him while Antonio made his way through the immigration system. Upon his release to the sponsor, Antonio enrolled in the eighth grade and went to work for anyone who would hire a child without a work permit. Work took priority, and Antonio soon stopped attending school in order to survive. While sponsors of undocumented children are supposed to provide for the children in their care, Antonio’s sponsor instead kept track of the costs required to transport, house, and feed Antonio and required him to pay that money back, which took a year of work. Antonio cleaned houses, landscaped, and packed vegetables overnight. He worked for companies that claimed not to hire minors. He did not stay in his sponsor’s care long, instead living in apartments with several other people. Rather than attend school like other children, Antonio was forced to support himself. He now lives in a neighborhood in which children as young as twelve years old work in hazardous occupations such as construction in order to survive.²

Antonio’s story is a common one. Children who arrive at the U.S. border alone often find themselves forced to work rather than attend school in order to survive or pay off debts that sponsors or other parties impose on them, creating a real risk of child labor exploitation or even labor trafficking. “Labor exploitation” is an oft-used term without an exact definition, but as used in this Note, it generally describes employers committing workplace violations for profit, usually by scheduling employees for excessively long hours, underpaying them in violation of law, or disregarding safety rules and regulations meant to protect workers.³ “Labor trafficking” is a crime in which traffickers force people to work while taking the fruits of workers’ labor for themselves.⁴ Labor trafficking turns on an element of force, fraud, or coercion, by which labor exploitation is elevated from harmful, but possibly blameless, conduct to criminal and morally reprehensible behavior.⁵ Unaccompanied children are meant to be protected from such abuses in the United States by federal immigration and labor law.⁶

When children arrive at the U.S. border without permission to enter the country, they are apprehended and detained, usually by United States Customs and Border Protection (“CBP”).⁷ Children with no parent or legal guardian present are separated from whoever they are with and held in temporary facilities made for adults. They are then questioned by federal agents and, if found to be unaccompanied, are transferred to the custody of the Department of Health and Human Services’ (“HHS”) Office of Refugee Resettlement (“ORR”). In ORR custody, children are put into some form of group facility with other children, generally for about thirty days. ORR houses and feeds these children, and case managers eventually speak with each child to determine a suitable sponsor for the child to be placed with. While finding sponsors, the U.S. government enters each child into formal removal proceedings, unless a child asks to be repatriated.

ORR screens each potential sponsor, but screening requirements often change with presidential administrations or with a rise in the backlog of children in federal custody. Changes in sponsor screening can affect the length of time that children are in ORR custody, which is particularly problematic given that longer stays in government custody can cause lasting trauma to children. With a backlog of children in federal custody upon taking office in 2021, the Biden administration pushed to release children as quickly as possible to sponsor homes and lowered the hurdles that sponsors must clear when applying to ORR’s Unaccompanied Alien Children Bureau (“UAC Bureau”), the federal program that places unaccompanied children in sponsor homes.⁸ In its haste, the administration may have unintentionally increased the risk of unaccompanied children landing in unsuitable environments in which labor exploitation or trafficking can occur.

In the best-case scenario, ORR places a child with a sponsor that the child knows, such as a parent or family member, who will properly care for them and enroll them in school while the child’s immigration proceedings play out. The worst-case scenario is that the child is placed with a sponsor whom they have never met, who will take advantage of the child financially or otherwise. In this worst-case scenario, sponsors might charge children for basic expenses like rent, food, clothing, and school supplies, essentially forcing the child to work after school (or in lieu of attending) to repay their debt.⁹ Worse, the sponsor may force the child to work and take the child’s entire earnings for themselves. Migrant children who must work often find themselves in workplaces considered dangerous by the federal government, even for adults.¹⁰ These children may not make enough money to pay their debts working normal shifts after school hours, so they may work overnight shifts or stop attending school altogether to work full-time. In such workplaces, child workers have been injured, maimed, and killed while working in violation of federal labor law.¹¹ Despite the risk, the harsh reality is that many unaccompanied children feel they have to work due to their vulnerable circumstances. What choice do they have otherwise?

The scenario described may seem horrific, or even unrealistic, but it has happened repeatedly in the United States. While such stories surface in the news annually, Congress finally put a renewed focus on the issue of child labor in 2023 after Hannah Dreier’s reporting in The New York Times detailed just how widespread the issue of migrant children working in dangerous American workplaces is.¹² Some migrant children have allegedly been trafficked into forced labor, and multiple federal agencies have been criticized for failing to adequately prevent or respond to the risk these children face, particularly ORR and the Department of Labor (“DOL”). Exposés like Dreier’s have cropped up amidst an unprecedented spike in unaccompanied children arriving at the U.S.-Mexico border, a spike that strained the government’s ability to adequately care for unaccompanied children. Particularly concerning to some members of Congress and the public was an allegation that ORR was unable to get in touch with over 80,000 unaccompanied children that the agency had released from its custody into sponsor homes.¹³ ORR’s inability to get in touch with tens of thousands of children coincided with a dramatic surge in documented cases of illegal child labor nationwide. Although congressional Republicans and Democrats held hearings with ORR and DOL officials to understand why children could not be contacted and why child labor violations were increasing,¹⁴ there was little in the way of a coordinated government response to deal with these crises as related issues that may increase the risk of unaccompanied children being exploited for their labor.

Encouragingly, in 2023, ORR and DOL agreed to share information in an effort to jointly combat child labor trafficking and exploitation.¹⁵ But between ORR’s limitations in providing post-release services to children paroled into sponsor care and DOL’s lack of resources and relatively toothless enforcement options, migrant children still have inadequate protections and can fall prey to labor trafficking or exploitation. While some scholarship exists on the inadequacies of the UAC Bureau,¹⁶ few if any scholars have focused on how gaps in immigration law and federal labor law combine to increase the risk of exploitation to unaccompanied children. This Note aims to fill the gap in current scholarship relating to unaccompanied children by undertaking a novel and holistic review of both federal immigration law and labor law. The aim is to identify gaps in both areas of law that contribute to the risk of unaccompanied children being exploited for their labor by either their sponsors or irresponsible employers and discuss how these areas can be addressed in a comprehensive manner to lower that risk of harm.

This Note attempts to make sense of the various statutes, regulations, and government agencies that are meant to protect migrant children in different ways and argues for a coordinated, whole-of-government approach to minimize the risk that unaccompanied children fall into labor exploitation. While this Note touches on labor trafficking, its main focus is labor exploitation, as there is no comprehensive source of reliable data on labor trafficking among unaccompanied minors. Part I of this Note begins by quantifying the historic levels of unaccompanied minors arriving at the U.S. border since 2019 and explores the shifting immigration policies and rationales that have contributed to the crisis. Part II explains the legal foundation governing the apprehension of unaccompanied minors and discusses ORR’s role in placing minors into custody. Part III examines child labor violations nationwide and delves into the legal framework that is supposed to protect children from being exploited in the workplace. Part IV analyzes the current failings of both federal immigration law and labor law to protect unaccompanied children and offers possible solutions that can minimize the risk of exploitation for these children. The Note concludes by laying the groundwork for future discussion.

By addressing the labor exploitation of unaccompanied children through a multipronged review of separate but overlapping areas of law, this Note endeavors to change the discourse surrounding the federal government’s approach from a conversation of unilateral federal agency failures to one that discusses how our patchwork system of laws can be updated to best serve the needs of unaccompanied children. The Biden administration correctly approached influxes of unaccompanied minors with a humanitarian focus, but federal law needs to be updated to ensure that the federal government takes full responsibility for ensuring the safety of each child it welcomes into the country.¹⁷

I.A Historic Influx of Unaccompanied Children

Before exploring what happens when unaccompanied children enter the United States, it is important to highlight who these children are, where they come from, why they flee their homes, and what happens when they encounter border authorities in the United States. To begin, a migrant child who arrives at the U.S. border unaccompanied by a parent or guardian is referred to by CBP as an “unaccompanied alien child,” or “UC,” for short.¹⁸ A UC is statutorily defined as a child under eighteen years old who has no lawful immigration status in the United States and who either has no parent or legal guardian accompanying them into the United States or has no parent or guardian who can provide immediate care and physical custody.¹⁹ From 2010 until 2019, CBP apprehended an average of 43,425 unaccompanied children per year at the U.S. border, with nearly all of those apprehensions occurring at the Southwest border.²⁰ The number of apprehensions trended upward over that ten-year span, hitting a then-record high of 76,136 during the first Trump presidency in 2019.²¹ Decreased migration and public health border enforcement during the COVID-19 pandemic led to a sharp downturn in apprehensions in 2020, but since 2021, there has been a massive spike in the number of unaccompanied children arriving at the U.S. border, with an average of 130,122 CBP apprehensions per year.²² This average nearly doubles the pre-pandemic record high for apprehensions of unaccompanied children in a single year.

The majority of unaccompanied children are consistently aged between fifteen and seventeen years old.²³ For years, most unaccompanied children arrived from Mexico, but that majority has shifted dramatically over the last ten years to the Northern Triangle countries of El Salvador, Guatemala, and Honduras.²⁴ Regardless of country of origin, similar explanations underlie why migrant children are traveling to the U.S. border en masse. Many migrant children seek economic opportunity, which has always been a factor driving immigration, but many others flee extreme violence, poverty, and ecological disaster.²⁵ Others are driven by a desire to reunite with family already in the United States, with an estimated 80% of unaccompanied children having at least one family member in the country as of 2021.²⁶ While some politicians and pundits may try to ascribe nefarious motives to the spike in migration, there are usually reasonable economic and socio-political explanations for why children arrive at the U.S. border.

Where an unaccompanied child is from makes a large difference in what happens when they encounter border officials. Under the Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA”),²⁷ children arriving from noncontiguous countries such as El Salvador, Guatemala, and Honduras are usually detained by CBP and transferred into the custody of ORR.²⁸ Once transferred, these children are put into formal removal proceedings and given an opportunity to seek different forms of immigration relief, such as asylum.²⁹ In contrast, children arriving from Mexico or Canada are usually repatriated immediately, so long as they are not trafficking victims and raise no fear of persecution upon return to their home countries.³⁰

Waves of unaccompanied minors arriving at the U.S. border have challenged the last four presidential administrations. Fearing that children were being trafficked into the United States, the George W. Bush administration passed the TVPRA in 2008, which barred the quick deportation of unaccompanied minors from countries other than Mexico.³¹ The Obama administration used the TVPRA to greatly expand the government’s ability to respond to unaccompanied arrivals, housing children in temporary camps on military bases and spending billions of dollars expanding a network of shelters that ORR could place unaccompanied children into while they awaited placement in the United States.³² The Trump administration responded to surges in arrivals in 2019 and 2020 by trying to limit both legal and illegal immigration, focusing on deterrence through family separation policies and the solicitation of Congress for funds to erect a border wall, all while allowing ORR’s shelters to fill near capacity.³³ When the COVID-19 pandemic struck in 2020, the Trump administration seized on a Center for Disease Control and Prevention (“CDC”) public health order called Title 42 to promptly deport most unaccompanied children detained by CBP to Mexico, in violation of the TVPRA.³⁴ The use of Title 42 cut encounters with unaccompanied children at the southern border by more than half,³⁵ but left kids to fend for themselves along the U.S.-Mexico border. In 2021, the Biden administration reversed course, formally exempting unaccompanied minors from Title 42 expulsions and requiring that they be processed under the TVPRA’s Title 8 procedures.³⁶ Unaccompanied minor apprehensions rebounded in 2021 to what was then a new record high of 140,191, before jumping again in 2022 to 149,086.³⁷

Whether any executive policy has been particularly effective in properly addressing surges in unaccompanied-minor arrivals is up for debate. The Trump administration’s hardline policies against immigration lessened the number of encounters with unaccompanied minors, but a survey of Central American children in transit revealed that 66% would try to flee their country again if detained and deported by the U.S. government,³⁸ showing that hardline tactics are not likely to stop unaccompanied children from arriving at the U.S. border. The Obama and Biden administrations took a two-pronged humanitarian approach by housing minors in shelters as a short-term solution with a goal of family reunification or sponsor placement, while attempting to address the root causes of immigration by working with foreign governments to dissuade foreign citizens from immigrating and providing legal pathways for children to apply for entry into the United States without arriving at the border unannounced.³⁹ While the Obama and Biden approaches were humanitarian in nature, such approaches were also unlikely to disincentivize children from traveling to the border.

This Note is not meant to tackle the root causes of child migration or question whether the U.S. border should be accessible or closed to migrant children. Whether increased child migration is driven by violence, poverty, ecological disaster, economic opportunity, or governmental policy, it almost certainly will persist. Rather, this Note recognizes that unaccompanied minors are uniquely vulnerable to labor exploitation and trafficking and that current U.S. law is ill equipped to protect children from such realities. The question is, how can current legal structures be changed or improved to handle arrivals of unaccompanied minors in a way that best meets the needs of such children?

II.The Legal Foundation Underpinning ORR’s Apprehension, Custody, and placement of Unaccompanied Children

The apprehension and administrative processing of unaccompanied children is governed by a court settlement known as the Flores Settlement Agreement of 1997 (“Flores Agreement”), the Homeland Security Act of 2002 (“HSA”), the TVPRA, and various regulations. Understanding the legal foundation underpinning the UAC Bureau is critical to evaluating the gaps in the system that expose unaccompanied minors to a greater risk of labor exploitation.

A.The Flores Settlement Agreement of 1997

The modern-day treatment of unaccompanied children detained by the government was largely shaped by the Flores Agreement. The Flores Agreement resulted from a class action lawsuit between the former Immigration and Naturalization Service (“INS”) and two organizations representing the legal interests of immigrant children held in INS detention. The lawsuit was brought on behalf of detained children who were held in “suboptimal conditions” and “subjected to daily strip searches by immigration officers.”⁴⁰ In 1984, the INS “adopted a policy prohibiting the release of detained minors to anyone other than ‘a parent or lawful guardian, except in unusual or extraordinary cases.’ ”⁴¹ These children were held in government detention despite many having other adult family members who were willing to care for them while their immigration proceedings played out.⁴²

In 1997, the plaintiff class and the government reached a settlement which set out a nationwide policy governing the detention, release, and treatment of minors in INS custody.⁴³ The settlement required the humane treatment of migrant children held in federal custody⁴⁴ and created a presumption in favor of release and family reunification for minors who were not at risk of missing appearances in immigration court or whose safety did not need to be ensured.⁴⁵ Under the agreement, minors were to be released from INS custody, in order of preference, to (1) a parent, (2) a legal guardian, (3) an adult relative, (4) an adult individual or entity designated by the parent or legal guardian, (5) a licensed program willing to accept legal custody, or (6) an adult individual or entity seeking custody.⁴⁶ Unreleased children were to be placed in a state-licensed and non-secure program that provided residential, group, or foster-care services for children.⁴⁷

While the district court that approved the Flores Agreement continues to monitor the federal government’s compliance with its terms,⁴⁸ developments in statutory law (particularly the passage of the HSA and TVPRA) and federal regulations have changed the structure of U.S. immigration and modified the Flores Agreement’s nationwide policy regarding the detention and release of minors held in government custody.

B.The Homeland Security Act of 2002

The HSA abolished the INS and created the Department of Homeland Security (“DHS”) to fulfill most of INS’s functions,⁴⁹ including immigrant detention and removal responsibilities.⁵⁰ Importantly, section 462 of the HSA transferred INS’s jurisdiction over unaccompanied children to ORR.⁵¹ Section 462(b)(1) made ORR responsible for “the care and placement of unaccompanied alien children,” requiring the agency to consider the interests of each child when making care and custody decisions and make placement determinations for every unaccompanied child in federal custody by reason of immigration status.⁵² The HSA defined “unaccompanied alien children” as children under eighteen years of age who have no lawful immigration status and no accompanying parent or guardian present in the United States⁵³ and defined the term “placement” as the “placement of an unaccompanied child in either a detention facility or an alternative to such a facility.”⁵⁴ ORR inherited both INS’s custodial responsibilities and its responsibilities arising under the Flores Agreement, specifically the mandate to place unaccompanied minors into the care of a suitable sponsor, per the list of placement preferences.

C.The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008

Congress enacted the TVPRA, in part, to address concerns that unaccompanied minors in government custody were being inadequately screened for evidence of human trafficking.⁵⁵ The TVPRA builds on the HSA and requires that the Secretary of Homeland Security develop policies and procedures to ensure that unaccompanied children are safely repatriated to their country of nationality or to the last country they lived in.⁵⁶ Section 235 of the TVPRA lays out “special rules” allowing children from contiguous countries (Mexico and Canada) to be safely repatriated to their country of origin or last habitual residence.⁵⁷ Under section 235(a), an immigration officer may remove an unaccompanied child appearing at a land border or U.S. port of entry from the country so long as the child is from a contiguous country, has not been nor is at risk of being a victim of a severe form of human trafficking, and does not have a credible fear of persecution in their home country, and so long as the child is allowed to make an independent decision to withdraw their application for admission to the United States.⁵⁸ Children must be screened for evidence of trafficking or persecution within forty-eight hours of apprehension.⁵⁹

Unaccompanied children from noncontiguous countries, like those comprising the Northern Triangle, must be transferred to ORR’s custody within seventy-two hours, consistent with the HSA.⁶⁰ The Secretary of HHS, in collaboration with the Secretary of Homeland Security, Attorney General, and Secretary of State, is tasked with promulgating policies and programs for ORR to follow to ensure that unaccompanied children are “protected from traffickers and other persons seeking to victimize or otherwise engage such children in criminal, harmful, or exploitative activity.”⁶¹ Importantly, children in ORR’s care and custody are to be promptly placed in the “least restrictive setting that is in the best interest of the child.”⁶² The least restrictive setting requirement works hand in hand with the HSA requirement of sponsor placement and prevents children from being held in government detention indefinitely while awaiting their immigration hearings.

The TVPRA directs ORR to find each child a suitable sponsor who is capable of providing for the child’s physical and mental well-being.⁶³ ORR is tasked with verifying a sponsor’s identity and relationship to the child and is responsible for ensuring that a sponsor has not engaged in any activity that would signal potential risk to the child.⁶⁴ ORR must also determine whether a study of the sponsor’s home is necessary before placement, which is required for children who were victims of severe forms of trafficking or of physical or sexual abuse, who have disabilities, or whose proposed sponsors clearly present a risk of “abuse, maltreatment, exploitation, or trafficking.”⁶⁵ After placement, the TVPRA requires ORR to conduct “follow-up services” only for children for whom a home study was conducted, but ORR is authorized to conduct such services for children who could “benefit from ongoing assistance from a social welfare agency.”⁶⁶ What follow-up services entail is not defined in the law, nor is there guidance as to which children would benefit from ongoing assistance, leaving ORR with discretion unless directed otherwise. Put another way, if no home study is performed, ORR has no responsibility under the TVPRA to follow up with a child whom it placed into a sponsor’s care.

D.ORR’s Role in Child Custody and Placement

As laid out in the HSA and TVPRA, ORR is the branch of HHS tasked with caring for and placing unaccompanied minors into sponsor homes. Those two statutes, and by extension, the Flores Agreement, provide the legal basis for ORR’s UAC Bureau, which puts the statutory schemes of child detention and placement into practice. Exploring the reality of the UAC Bureau, including how and where children are actually placed and what occurs after placement, is essential to understanding how immigration law and ORR practices place migrant children at an increased risk of labor exploitation.

The majority of unaccompanied children are referred to ORR’s UAC Bureau after being apprehended by DHS border patrol officers, with some children referred by other federal agencies in rare circumstances.⁶⁷ When a child is referred to ORR, ORR obtains background information on the child from the referring agency and attempts to determine the most appropriate and least restrictive setting in which to hold the child until a sponsor determination is made.⁶⁸ Settings may include a shelter facility, foster care or group home, staff secure or secure care facility, residential treatment center, or other special needs care facility.⁶⁹ In moments of high influx, settings have included temporary influx care facilities (“ICFs”), in which hundreds or thousands of children can be kept, usually on army bases or in remote locations.⁷⁰

The initial setting that children are held in is part of the problem with ORR’s UAC Bureau. While some shelters are appropriate for children, the use of ICFs is controversial due to the “facilities’ large sizes, remote locations, durations of stay, and processes for transferring children to the facilities.”⁷¹ ORR internal reports have revealed thousands of allegations of sexual abuse and harassment in ICFs and identified shortcomings for reporting such incidents within ORR’s shelter network.⁷² Even in smaller settings, children are often traumatized by their stays in government custody. Minors are often surrounded by strangers and limited to two short phone calls per week with family members or potential sponsors, facing a lack of caregiver support that can cause toxic stress in children.⁷³ Studies have shown that children detained in federal custody can suffer from “high rates of PTSD, anxiety, depression, and suicidal ideation.”⁷⁴ Thus, the longer children are detained, the more likely they will suffer harm of some sort. As of March 2025, the average stay for children in ORR custody was eighty-two days, which ORR is continually working to reduce.⁷⁵

The placement of children in sponsor homes and ORR’s follow-up services are of particular interest in this Note. As discussed, ORR’s placement of a child with a sponsor begins as soon as ORR takes custody, with the Flores Agreement preferences used as a guideline in placement. Parents, relatives, and close family members in the United States may apply to have a child in custody released to their care.⁷⁶ If no family member comes forward, ORR works with the child to identify a potential sponsor, or with the child’s consulate or a reputable family tracing organization if the child is too young to provide potential sponsor information.⁷⁷

ORR requires each potential sponsor to be screened using safe screening methods. A non-exhaustive list of safe screening methods includes identifying the sponsor, verifying a familial relationship, coordinating with a child’s parents, legal guardians, or closest relative to contact nonrelative adult sponsors, screening for exploitation or trafficking concerns, or communicating with the child directly about his or her own sense of safety.⁷⁸

Sponsor requirements are not extensive. For the most part, a sponsor simply needs to fill out an application, undergo a background check, address any criminal history, and provide proof of their identity and address, the identity of the child whom they wish to sponsor, and any sponsor-child relationship.⁷⁹ Sponsors are assessed based on a number of factors. A non-exhaustive list includes the sponsor’s relationship with the child, their resources and motivation to care for the child, the child’s view on the release, the sponsor’s understanding of the child’s needs, and risk factors that may impact the child, such as the sponsor’s criminal background, history of substance abuse, mental health issues, or domestic violence or child welfare concerns.⁸⁰ ORR does not disqualify sponsors “based solely on their immigration status or for law enforcement purposes.”⁸¹ Importantly, while sponsors enter into agreements with the federal government to provide for the physical and mental well-being of children,⁸² there appears to be no enforcement mechanism at ORR’s disposal to ensure that sponsors live up to their agreements.

Once a child is transferred to a sponsor’s custody, “ORR’s custodial relationship with the child terminates,” and care providers are required only to keep a child’s case file open for thirty days to conduct a “Safety and Well-Being Follow Up Call.”⁸³ The purpose of the safety call is to determine whether the child is safe, still in the sponsor’s care, enrolled in or attending school, and aware of upcoming immigration court dates.⁸⁴ If the care provider cannot get in touch with the child or sponsor, the provider is required only to document that fact in the child’s file,⁸⁵ a somewhat inadequate requirement given that the government has tasked itself with ensuring the well-being of unaccompanied children.⁸⁶ While ORR provides post-release services to some children with certain needs, most children and sponsors are given access only to a national hotline to be called when needed. With hotline reports of labor trafficking and exploitation of unaccompanied children jumping up in 2023,⁸⁷ it is alarming that ORR was able to contact only 81% of sponsor households between 2021 and 2022.⁸⁸ But even more alarming is that ORR has no legal responsibility to track children once they leave its custody⁸⁹ or to remove children from unfit sponsors in the event a child is exploited.⁹⁰

III. Labor Law’s Role in protecting Unaccompanied Children

While the federal government grappled with an influx of unaccompanied minors during the Biden presidency, the United States saw a 69% increase nationwide in the number of documented cases involving children employed illegally from 2018 through 2022, notably in dangerous workplaces such as meatpacking plants, construction sites, and food-processing factories.⁹¹ This increase corresponded with several news reports in 2023 detailing migrant children working in dangerous workplaces in violation of child labor laws,⁹² along with reports documenting the possible trafficking of migrant children into forced labor.⁹³ While this Note has explored the leaky system of sponsor placement for unaccompanied minors, an exploration of the laws governing child labor protections also needs to be conducted before the holes in the system can be addressed.

A. The Fair Labor Standards Act of 1938 and Related Child Labor Policies

The federal law governing the employment of child labor is the Fair Labor Standards Act of 1938 (“FLSA”).⁹⁴ The FLSA imposes occupational and hourly restrictions for children of different ages and provides penalties for employers who violate these restrictions. According to § 212(c) of the FLSA, employers⁹⁵ cannot employ any “oppressive child labor” in commerce, the “production of goods for commerce,” or any “enterprise engaged in commerce or the production of goods for commerce.”⁹⁶ Oppressive child labor means that an employer employs a child under the age of sixteen in any industry except for those exempted by the Secretary of Labor⁹⁷ or that a child between sixteen and eighteen is employed in any occupation declared as particularly hazardous for the child or detrimental to the child’s health.⁹⁸

There are several subparts in the Code of Federal Regulations (“CFR”) that either permit or prohibit specific jobs that children are allowed to work, with jobs not explicitly allowed by the CFR considered prohibited.⁹⁹ The CFR allows minors to work in jobs like babysitting, newspaper delivery, and retail work,¹⁰⁰ but minors are generally not allowed to work in hazardous occupations such as manufacturing, mining, processing, construction, roofing, warehousing, or transportation of persons.¹⁰¹ Working hours for children between the ages of fourteen and fifteen are restricted by the FLSA, with such children generally not allowed to work during school hours, more than three hours a day or eighteen hours a week while school is in session, or beyond 7 p.m. during the school year or 9 p.m. during the summer.¹⁰² Children sixteen and older can generally work without hourly restriction in any jobs that have not been declared hazardous or detrimental to their health. While occupational restrictions remain in place as children age, federal law removes hourly restrictions when children turn sixteen, a somewhat arbitrary line, but one that corresponds with the maximum age of compulsory school attendance in many states. The main thrust of the FLSA’s restrictions is that children should not be working in hazardous workplaces or doing jobs that are detrimental to their health, nor should work interfere with their education.

An employer who violates the FLSA is subject to civil money penalties and possibly up to six months in prison if they willfully violate a child labor provision subsequent to an earlier conviction.¹⁰³ Employers are subject to a maximum fine of $15,138 for each employee who was the subject of a child labor violation and can face fines up to $68,801 for each violation that causes the death or serious injury of employees under eighteen.¹⁰⁴ For repeated or willful violations that lead to the death or serious injury of a child employee, the fine may double.¹⁰⁵ There is no private cause of action under the FLSA for children who suffer child labor violations, a problematic omission that will be discussed in Section IV.B.2.

DOL’s Wage and Hour Division (“WHD”) is responsible for investigating and determining whether employers are in compliance with the FLSA’s child labor provisions.¹⁰⁶ In 2023, WHD concluded 955 cases involving child labor violations, finding 5,792 minors were employed in violation of the FLSA, of which 502 were employed in hazardous occupations.¹⁰⁷ During the Biden presidency, WHD stepped up enforcement significantly, levying multi-million dollars in fines that nearly doubled in amount year-over-year between 2022 and 2024.¹⁰⁸ Unfortunately, the number of cases involving migrant children is not tracked by WHD, but the number of children employed in violation of federal law increased 88% between 2019 and 2023,¹⁰⁹ corresponding with the influx of unaccompanied child arrivals.

In February 2023, DOL and ORR recognized the link between increased child migration and increased child labor exploitation and entered into an interagency agreement to combat child labor exploitation amongst unaccompanied children.¹¹⁰ Pursuant to this agreement, DOL and ORR collaborate and share information regarding child labor investigations and child placements.¹¹¹ The agencies gave an example of what this information sharing looks like: DOL shares information regarding an active child labor investigation with ORR, and ORR scrutinizes its sponsor vetting process in the related geographic location for signs of exploitation affecting unaccompanied children placed nearby.¹¹² In the agreement, WHD pledged to affirmatively initiate investigations in which child labor violations are most likely to occur, while ORR pledged to follow up with any child who calls the ORR National Call Center with a safety concern, a practice that was not previously utilized.¹¹³ Most importantly, the agreement called on Congress to increase funding for WHD and the Office of the Solicitor to investigate child labor cases and to increase civil penalties for child labor violations to be more of a deterrent for employers.¹¹⁴ WHD and the Office of the Solicitor have been chronically underfunded for decades, costing WHD 12% of its staff between 2010 and 2019 and resulting in more than a hundred attorneys leaving the Office of the Solicitor.¹¹⁵ Those losses have limited the number of child labor cases that WHD and the Office of the Solicitor can investigate and conclude. Given that the actual number of child labor violations in the United States is currently unknown and WHD’s budget shortfalls leave it unable to properly investigate, there is no telling how many children are actually being exploited in U.S. workplaces.

B. Varying State Child Labor Laws

As mentioned earlier, state law plays a role in the child labor protection scheme, with each state having its own system for policing illegal child labor. Some states simply implement FLSA’s provisions into their labor codes, but many create stronger protections for minors. For instance, California follows the FLSA structure of occupational and hourly restrictions but imposes hourly restrictions on children over sixteen.¹¹⁶ California’s labor code also expands the reach of its child labor protections to any person who owns or controls real property where a minor is employed if that person benefits from the minor’s employment and knowingly permits a child labor violation.¹¹⁷ Extending liability to those who own or control property covers situations in which no employment relationship exists between the property holder and a minor. For example, if a business entity hires an independent contractor to work on the entity’s property and the contractor uses illegal child labor, the entity could be liable despite having no control over the contractor’s employee. State laws also often require children and employers to obtain work permits that can provide proof of age and detail any restrictions in working hours or tasks a minor is qualified to do.¹¹⁸

Troublingly, at least twenty-eight states have reworked their labor codes to loosen restrictions on child labor since 2021, with some states loosening hourly and occupational restrictions to the point of conflict with the FLSA.¹¹⁹ Iowa, for example, loosened occupational restrictions to allow children to work in dangerous occupations like brick manufacturing, roofing, and excavation, which are prohibited under the FLSA.¹²⁰ Iowa’s approach of allowing children to work in direct violation of FLSA restrictions is reflective of a recent push by some states to create a point of tension between state and federal law, which puts DOL on alert moving forward.¹²¹

Due to the varying approaches states take to child labor protections, state law generally is not the best tool with which to protect unaccompanied minors. While states like California may offer stronger protections than states like Iowa, unaccompanied minors will only be protected by the laws of the states in which they reside with their sponsors. Relying on state law to cure the gaps in federal law creates a system in which unaccompanied minors will be exposed to various levels of risk depending on how much emphasis states put on protecting children in the workplace.

C. Anti-Trafficking Laws Protecting Unaccompanied Children

Labor trafficking of unaccompanied minors is the ultimate concern when it comes to labor exploitation. Although the TVPRA is written to help protect minors from being trafficked by requiring DHS to determine whether an unaccompanied minor has been a victim of a severe form of trafficking or whether a child is at risk of being a victim in the future,¹²² there are not many preventative measures once a child leaves ORR custody. The precursor to the TVPRA, the Trafficking Victims Protection Act of 2000 (“TVPA”), added criminal offenses relating to human trafficking to the United States Code, which are supposed to act as a deterrent to would-be traffickers.¹²³ Under 18 U.S.C. § 1589, defendants found to be trafficking in persons can face fines and be imprisoned for up to twenty years.¹²⁴ If a trafficking violation includes kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to kill, the trafficker can be imprisoned for life.¹²⁵ Traffickers are people who knowingly provide or obtain the labor or services of a person by means or threats of force, physical restraint, serious harm, the actual or threatened abuse of law or legal process, or by any scheme, plan, or pattern intended to cause a person to believe that if they do not perform labor or services, they or another person would suffer serious harm or physical restraint.¹²⁶ The meaning of the term “serious harm” is broad, including physical, psychological, financial, or reputational harm that is serious enough to compel a reasonable person of the same background and in the same circumstances to perform labor or services to avoid the harm.¹²⁷ Traffickers are also subject to civil penalties, including full restitution to a victim for the full amount of the victim’s losses.¹²⁸

On its face, the penalty scheme for trafficking has robust enough punishments to deter sponsors or third parties from trafficking unaccompanied minors and abusing their labor. But the actual effectiveness of those deterrents is unknown given that there are no readily available and reliable statistics about how often traffickers are prosecuted for the labor trafficking of unaccompanied minors. Unaccompanied children have a remedy under the TVPA in the event that trafficking is proven, but trafficking tends to be very hard to prosecute, and the TVPA’s deterrents are unlikely to keep migrant children from being pressured or forced into hazardous labor in the first place. As discussed, migrant children often want to work to help their families, and it is unlikely that many know what a textbook case of labor trafficking consists of or when to report it. While these protections for unaccompanied children and punishments for traffickers are important to keep in mind, a lack of information from the government prevents this Note from being able to adequately explore and critique the TVPA’s efficacy.

IV. ISSUES WITH and possible solutions for ORR’s PLACEMENT OF UNACCOMPANIED MINORS AND Federal enforcement of Child LABOR LAWs

Migrant children working in hazardous occupations is not a new issue, but the rate at which child labor violations are increasing and the holes in the placement and supervision of unaccompanied children portend serious failings in U.S. law and the procedures that federal agencies employ. At best, the current gaps in immigration and labor law increase the risk of migrant children being exploited or harmed by working in jobs they should not be in. At worst, the gaps are large enough to allow labor trafficking to occur. Determining how to solve the issue is not a straightforward exercise. Federal agencies, shelter networks, and individuals all have a part to play, but the complex web of federal laws, regulations, and interagency agreements has been built by dealing with one symptom of the unaccompanied arrivals issue at a time. The government should take a more comprehensive approach, updating existing laws as a complete system to protect children from point A (arrival at the border) to point B (the resolution of immigration proceedings). The Biden administration rightfully responded to unaccompanied arrivals with a humanitarian approach focused on quickly getting children out of federal custody, but current law does not ensure that unaccompanied children will be adequately taken care of after their release. The TVPRA alone does not mandate ORR to do enough to protect children, nor does the FLSA provide robust enough enforcement mechanisms to properly deter irresponsible employers or third parties from exploiting children who are motivated to work for a variety of reasons. State law also cannot be relied on to adequately protect unaccompanied children due to the various different enforcement schemes at hand across the nation.

This Part will identify issues with ORR’s custody, placement, and post-release supervision of unaccompanied minors and DOL’s inability to properly deter illegal child labor. It will also discuss possible solutions that can be implemented in a way that balances humanitarian principles with employer realities and government capabilities, presenting a series of adjustments in U.S immigration and labor law that could combine to minimize the risk that unaccompanied children face labor exploitation. This Part assumes that the majority of employers are responsible and seek to fully comply with the law. It uses the term “irresponsible employers” to mean those that would willingly resort to illegal child labor in violation of state or federal law.

A.Issues with ORR’s Custody, Placement, and Post-Release Supervision of Unaccompanied Minors

1.Proper Vetting of Sponsors Versus Speed of Release

As discussed in Part III, there are many drawbacks to holding children in ORR custody. Children may suffer sexual harassment and abuse in government facilities,¹²⁹ and a child’s lack of contact with their family can lead to toxic stress that permanently alters brain chemistry.¹³⁰ Children being traumatized in federal custody is real. Studies show that detention is “deleterious to the mental health of immigrants” and that detained children experience significant psychological distress, especially when separated from their caretakers.¹³¹ While the risk of harm to migrant children in ORR’s custody has been clearly documented, releasing a child to a sponsor too quickly can put the child at risk of not being properly cared for, possibly leading to the child’s exploitation or trafficking, examples of which reporters have repeatedly identified.¹³² Thus, the government must strike a risk-minimizing balance between quickly placing unaccompanied children with sponsors to avoid prolonged detention and properly vetting sponsor households to ensure a safe environment for paroled children.

During the first Trump presidency, the average length of time that unaccompanied children remained in ORR custody ballooned to 102 days, partially as a result of an information-sharing agreement between ORR, Immigration and Customs Enforcement (“ICE”), and CBP that was geared toward increasing the due diligence required for sponsors.¹³³ The agreement called for ORR to share the citizenship and immigration status, criminal and immigration history, and biographic and biometric information about potential sponsors and their household members with ICE.¹³⁴ In turn, ICE would provide summaries of a sponsor’s immigration and criminal histories for ORR to make a more thorough decision on a sponsor’s suitability.¹³⁵ While the Trump administration sold the agreement as a more stringent vetting of sponsors to ensure the well-being and protection of unaccompanied minors, the policy was ultimately used by ICE to arrest and deport undocumented migrants who applied to sponsor children, causing a chilling effect on the number of sponsors willing to apply to take children in.¹³⁶ With fewer sponsors, increases in minors’ detention time naturally resulted. A massive backlog of unaccompanied minors in prolonged detention led the Biden administration to terminate the Trump-era information sharing agreement between ORR and ICE and temporarily waive background check requirements for sponsor applicant household members,¹³⁷ adopting a controversial policy of moving children more rapidly through the shelter system.¹³⁸ These policy changes created a major issue for the UAC Bureau: the risk of harm to children in custody was traded for the risk that children would end up in an inappropriate sponsor home. Moving back into a Trump presidency begs the question of whether President Biden’s approach should persist.

The second Trump administration should not return to a policy of sharing sponsor information between ORR and ICE, as it greatly prolonged child stays in detention while being used as a tool to deport family members who sought to reunite with children in federal custody. The Biden administration’s decision to terminate the information sharing agreement to speed up sponsor placements was the correct call, as it is not in the best interests of unaccompanied children or the government to discourage sponsorship by involving ICE in the vetting process. A child’s best interest is to be released quickly and safely, ideally into a family member’s care. But many family members of unaccompanied children may themselves be undocumented or live with others who are. Allowing ICE to scrutinize members of a sponsor’s household will undoubtedly disincentivize family members from applying as sponsors and lead to longer detention for children, as seen during the first Trump presidency. It is also unlikely that the immigration status of a member of a sponsor’s household, on its own, increases any risk to a child placed in the sponsor’s care. Likewise, the government’s best interest is also to quickly and safely place a child in a sponsor’s care, as it is not feasible for ORR to house, educate, and care for tens of thousands of children for any prolonged period of time. In its current state, the U.S. immigration system is not equipped to care for unaccompanied minors for more than a few weeks, if at all. Placing children with sponsors quickly, even if a member of a sponsor’s household may not have legal status in the United States, is better than leaving children languishing in federal detention and meets the needs of both unaccompanied minors and the federal government.

While the second Trump administration should not return to its former policies, the Biden administration’s policy of speeding up sponsor placements by waiving background checks for members of a sponsor applicant’s household should also not be used in the future. When ORR’s ability to properly care for children in custody is maxed out, sponsor placement is the only option, absent an uptick in resources meted out by Congress. That is the situation the Biden administration found itself in after taking office. But while speeding up placements is the only adequate option during times of agency overwhelm, the executive branch should not be able to resort to outright waivers of background checks for members of sponsor-applicants’ homes, as such measures impose unnecessary risk on the children that ORR is tasked to protect. The TVPRA already spells out minimum considerations ORR must make regarding sponsors,¹³⁹ and agency officials should remain beholden to minimal legal standards for the safety of unaccompanied minors.

Congress can likely address the shortcomings of both the Trump and Biden administrations by amending the TVPRA to ensure that anti-immigration administrations cannot impose unnecessary burdens on the UAC Bureau that slow child placement and that immigration-neutral or pro-immigration administrations cannot waive necessary background checks. Rather than setting a minimum standard, the TVPRA could be amended to define what a proper background check consists of, while making that background check non-waivable. While the TVPRA has minimum background check standards, Congress should take some discretion out of the hands of the Secretary of HHS by laying down a comprehensive and non-waivable background check via statute. Congress is in the best position to listen to stakeholders and balance the needs of children and HHS in outlining a background check. It can define the full scope of what a proper background check should consist of, prohibiting unnecessary steps like the extra ICE check, while ensuring that background checks cannot be legally waived by the HHS Secretary. Moreover, Congress should also statutorily guarantee that it will adjust ORR’s funding in times of system overwhelm. Such measures would add a layer of accountability and oversight over HHS in order to protect children from the harm of being released to unsuitable sponsors and guarantee that ORR has the resources it needs to properly ramp up operations during times of influx.

2.Keeping Track of Migrant Children Paroled into Sponsor Homes

The true impact of the Biden administration’s changes to sponsor vetting and child placement is currently unknown due to a lack of information about children placed into a sponsor’s care after a waived background check, which is a large part of the issue. According to former HHS Secretary Xavier Becerra, ORR has no legal requirement to keep track of children once it releases them from its custody, nor do paroled children or their sponsors have an obligation to follow up with ORR.¹⁴⁰ This is a major gap in the TVPRA and related regulations that raises the risk of labor exploitation. ORR increasingly lost touch with the children it paroled into sponsor care during the Biden presidency, as evidenced by the fact that it could not reach roughly 85,000 children for follow-up calls.¹⁴¹ Without a legal mandate to keep track of unaccompanied children upon release, ORR cannot be expected to prioritize critical measures that could help ensure the well-being of paroled children. ORR is the first line of defense in ensuring that children are in proper homes in which education is the priority, and the agency should be required to procure and maintain post-release data about whether children are attending school full-time or working, the nature of any such employment, and whether sponsors are adequately caring for them. Such data is critical in evaluating whether children are at a greater risk of harm by remaining in government custody or by being released as quickly as possible. At a minimum, Congress should amend the TVPRA to require ORR to keep track of children formerly in its custody and record statistics regarding school attendance and work performed, along with qualitative data about the child’s experience with their sponsor.

ORR does voluntarily contact children thirty days after their release and offers post-release services to a decent number of children,¹⁴² which shows that some infrastructure exists that could be scaled up. But ORR is not currently equipped to keep track of the tens of thousands of sponsored children currently in the United States and would certainly need further funding from Congress to do so. It is important to note that children would not need to be monitored indefinitely. The length of time that monitoring would be required is limited temporally by two factors: first, all unaccompanied minors are placed into removal proceedings immediately upon being transferred into ORR’s custody,¹⁴³ meaning each child’s monitoring has a guaranteed end date based on a determination of their immigration status; and second, children age out of the unaccompanied child program when they turn eighteen.¹⁴⁴ While ORR would need to significantly scale up its post-release capabilities to comprehensively track where every unaccompanied child goes and what happens to them post-release, this is likely a matter of political will that could have the backing of both conservative politicians concerned about undocumented immigrants in the country and liberal politicians concerned about the wellbeing of migrant children.

Monitoring whether unaccompanied children are attending school regularly would greatly improve the ability of ORR and DOL to identify children who may be at risk of exploitation. Much of the victimization discussed in this Note centers on unaccompanied minors who are working in hazardous conditions in violation of federal child labor laws. Children released to sponsors are usually required to attend school under state law,¹⁴⁵ but news reports make clear that many are not attending school regularly, if at all, and instead working long shifts in dangerous workplaces.¹⁴⁶ These children should be attending school full-time and focusing on their immigration matters. If a child’s attendance record in school is sparse, it may be evidence that the child is being overworked outside of school, which could point to exploitation from a third party. While ORR alone does not have the capacity or infrastructure to monitor every child it places into a sponsor home, it could enter into an information-sharing agreement with the Department of Education (“DOE”) to monitor school attendance for paroled children attending public schools. Local and state education boards regularly track student attendance in schools, and public schools that receive federal funding have the ability to share attendance statistics with DOE under the Federal Educational Rights and Privacy Act (“FERPA”).¹⁴⁷ Although FERPA protects the privacy of students’ education records (including history of attendance) and prevents them from being shared with any individual, agency, or organization without the written consent of parents,¹⁴⁸ the law only specifically affords privacy protections to parents and eligible students.¹⁴⁹ FERPA arguably does not apply to unaccompanied minors who are not in the care of their parents and, as such, would not be an impediment to DOE sharing student records with ORR. This kind of interagency agreement would provide ORR with vital information that could help tip the government off to potential exploitation of children who are not regularly attending class.

Through congressional mandate or interagency cooperation, keeping track of paroled children is the surest way to monitor their wellbeing and prevent them from working in dangerous situations. If the TVPRA were amended to mandate that ORR keep track of paroled children, an information-sharing agreement with DOE would likely be an efficient and cost-effective way to fulfill part of that mandate. Along with ORR’s information-sharing agreement with DOL, an agreement with DOE would enable federal agencies to pool their resources and work together to protect unaccompanied minors, without requiring a massive increase in funding from Congress. In today’s polarized political climate, a targeted amendment to the TVPRA and an interagency agreement are probably the most realistic and practical solutions.

3.Implementing Reporting Requirements for Sponsors

Even if ORR was mandated to monitor every unaccompanied child post-release, its efforts would not be effective without a change in current law to require sponsors and paroled children to report in to the agency. As previously noted, ORR was able to contact only about 81% of sponsor households with thirty-day wellness checks between 2022 and 2023.¹⁵⁰ Mandating ORR to contact children will not ensure contact will be made. Sponsors and children may simply be unreachable. While each sponsor signs an agreement with the federal government promising to provide for a child’s well-being, there is seemingly no requirement that a sponsor prove that they are doing so. For instance, if a sponsor coerces a child to work in order to pay for rent or meals that the sponsor is supposed to provide, ORR will not know unless the child reports the abuse to ORR’s National Call Center. The current system puts the onus squarely on children to voluntarily report their own abuse, which leads to guaranteed underreporting issues.¹⁵¹ A more humane system would require sponsors to check in with ORR at regular intervals to certify that children are being cared for, with an emphasis placed on hearing from the child directly. While such reporting requirements would still be vulnerable to sponsor misrepresentation or noncompliance, an affirmative obligation would exist for sponsors that could deter unsuitable sponsors from applying in the first place.

There may be some question as to whether tracking children post-release is actually necessary, as most children who arrive unaccompanied at the border are fifteen or older.¹⁵² Indeed, the idea of fifteen- and sixteen-year-olds entering the workforce is common in the United States,¹⁵³ but it is important to remember we are talking about a specific subset of particularly vulnerable children. It should not be controversial to say that a child’s focus should be on completing a primary education rather than working in a factory or slaughterhouse. As it stands, children who fail to attend school regularly, regardless of the reason, tend to suffer worse outcomes than those who do.¹⁵⁴ If the federal government is intent on meeting arrivals of unaccompanied children with a humanitarian focus, as it was under President Biden, it must create an immigration system that focuses on providing unaccompanied children with a proper education while keeping them from working in illegal occupations. Knowing where children are and what their condition is post-release is an important step toward meeting those goals and lowering the risk of harm.

4.Enforcement Mechanism Needed

The last major problem with ORR that this Note will address is ORR’s inability to act when sponsors fail to properly care for children. ORR’s role is limited to placing children safely into sponsor homes. It is not a federal law enforcement agency, and it is not statutorily tasked with scrutinizing whether sponsorships are successful. But ORR does require sponsors to agree to provide care for paroled children,¹⁵⁵ and it has an interest in knowing that sponsors comply with those agreements. If a sponsor’s care is lacking, ORR does not have many options to enforce its agreement and ensure that children are getting the help they need. According to former ORR Director Robin Dunn Marcos, ORR’s only recourse in such cases is to refer the matter “to local law enforcement, child protective service[s], and other federal entities as appropriate.”¹⁵⁶ ORR itself has no power to remove a child from a sponsor’s care. While referring allegations of sponsor abuse to state and local agencies seems like a reasonable process, the reliance on third-party entities to make a determination adds complexity to the UAC Bureau system and shifts the burden of protection away from the federal government. Unaccompanied children have distinct needs due to their immigration status, such that being placed into a foster home by a state or local agency may complicate their ability to seek familial help or legal representation during their immigration processes. Rather than relying on state agencies using differing processes to address sponsor abuse or abandonment, the federal government should be responsible for managing each unaccompanied minor to ensure continuity of care throughout the immigration process.

If an ORR sponsor credibly fails to honor their agreement with the federal government, there should be tangible actions that ORR can take, such as reclaiming custody of any child in the sponsor’s care and revoking that sponsor’s right to sponsor other children in the future. Rather than letting paroled children bounce between local, state, and federal agencies in the event of a failed sponsorship, Congress should amend the TVPRA to allow ORR to reassign children to suitable sponsors. Failed sponsorships include not only cases of abuse and exploitation, but also cases of neglect and abandonment in which sponsors help children get out of federal custody but then leave them to fend for themselves after release, which are not always foreseeable situations when vetting sponsors. By allowing or requiring ORR to retake custody of unaccompanied minors, Congress would incentivize ORR to follow sponsor-vetting procedures and find the right match at the outset, while allowing for continuity of contact between paroled children and the agency in the event a child is exploited by their sponsor. Increased continuity would lessen the confusion that unaccompanied children experience throughout the UAC Bureau and task ORR with the responsibility to make the program a success.

B. Inadequacies in FLSA Penalties and DOL Enforcement Capabilities

In 2023, then former ORR Director Dunn Marcos told the House Oversight and Accountability Subcommittee on National Security, the Border, and Foreign Affairs that combatting labor exploitation among unaccompanied children requires “a whole-of-government approach,”¹⁵⁷ intimating that ORR alone cannot solve the issue. Despite facing heavy bipartisan criticism for ORR’s performance, Director Dunn Marcos was correct. The federal government must act in tandem across agencies and government branches to properly safeguard unaccompanied minors. Collaborating with DOE would be a start in terms of monitoring children’s well-being post-release, but ORR cannot also monitor children in the workplace. That task belongs to DOL. While an existing agreement between the agencies exists to tackle possible labor exploitation of unaccompanied minors, congressional action and statutory changes are needed to further reduce the risk of exploitation for unaccompanied minors. This Section will address DOL’s chronic underfunding and FLSA’s insufficient statutory penalties as two issues that can be remedied to reduce the risk of unaccompanied minor exploitation. Further, it will discuss the need for a private cause of action for victims of willful child labor violations to provide children with a remedy for the harm they suffer.

1.DOL’s Chronic Underfunding Increases the Risk that Unaccompanied Minors Go Unnoticed by Federal Investigators

2023 and 2024 marked DOL’s most aggressive enforcement years in the agency’s history in terms of punishing employers who illegally employed child labor.¹⁵⁸ In response to a reported 88% jump in illegal child labor between 2019 and 2023,¹⁵⁹ DOL made clear that the rising rate “is a direct result of [the agency’s] increased emphasis on identifying child labor cases and bringing enforcement actions when [it] find[s] companies violating the law.”¹⁶⁰ The agency’s focus on expanding enforcement actions is welcome news for those concerned about unaccompanied children facing labor exploitation or trafficking, but Congress has left DOL chronically underfunded for years, undercutting WHD’s ability to properly investigate and enforce child labor laws.

In reviewing DOL’s 2024 budget, the number of investigators that WHD employed is near the lowest it has been in the last fifty years, down significantly from the peak level achieved in the 2013 fiscal year.¹⁶¹ According to the agency, reduced staffing levels limit WHD’s ability to “develop impactful cases,” and “[c]ontinuing to operate at these levels poses significant risks to the [agency’s] mission.”¹⁶² As of April 2023, WHD employed a mere 794 investigators¹⁶³ to police 11 million workplaces and enforce laws protecting roughly 165 million workers.¹⁶⁴ The number of investigators that WHD can afford to hire has eroded year-after-year since the agency employed over a thousand investigators per year from 2010 to 2013.¹⁶⁵ WHD’s 2023 operating budget authority of roughly $310 million was a slight increase over 2022’s $299 million,¹⁶⁶ but in terms of inflation-adjusted dollars, those funding figures are roughly even with the amount of money appropriated by Congress back in 2006,¹⁶⁷ demonstrating that Congress has been unwilling to increase its investment in the enforcement of child labor protections for decades. Without adequate funding, WHD cannot ensure it has an adequate number of investigators to look into allegations of illegal child labor.¹⁶⁸

The sheer number of workplaces that WHD is responsible for illustrates the problem of underfunding. If each of WHD’s 794 investigators began individually reviewing one workplace per day for signs of child labor violations, it would take roughly thirty-eight years to complete a single round of investigations of all eleven million workplaces in the United States.¹⁶⁹ Obviously, not every employer needs to be investigated for child labor violations, as many (if not most) do everything in their power to follow the law, but the illustration serves to show how thinly stretched WHD is. Under all of the statutes that WHD enforces, it concluded 20,215 compliance actions in 2023, its lowest total in ten years.¹⁷⁰ Even though its number of closed cases involving child labor violations reached a ten-year high in 2023,¹⁷¹ WHD failed to conclude the same number of compliance actions as the previous year for the sixth straight year.¹⁷² These figures should not be read to assume that federal labor law violations are on the decline. As evidenced by the sharp increase in child labor law violations nationwide, the rate of violations tends to increase in areas in which WHD focuses its attention in the first place.

The only solution to the issue of inadequate enforcement caused by understaffing is proper funding. Both chambers of Congress have made a point to try to address child labor violations by presenting bills with expanded penalties for violators,¹⁷³ but increasing penalties alone will not lessen WHD’s burden as it attempts to enforce child labor laws. Harsher penalties may deter some irresponsible employers and lead them back to a place of compliance, but the agency will likely still be stymied by the same erosion of resources and investigators as has been the case the past ten years. If Congress is serious about addressing the harms that unaccompanied children (and U.S. children) face in abusive workplaces, it needs to fully fund DOL, as the Biden administration requested in its 2024 budget. With full agency funding, WHD would have the capacity to increase child labor investigations, thereby reducing the risk that unaccompanied minors working in some of the United States’ most dangerous workplaces go unnoticed. Without adequate funding, WHD will be continually forced to ration its enforcement capabilities with an ever-shrinking roster of investigators, thus ensuring that labor exploitation of unaccompanied minors goes unnoticed.

2. Current FLSA Penalties Are Inadequate to Deter Bad Actors from Committing Child Labor Law Violations

Even if Congress adequately funded DOL, there would still be an issue of inadequate penalties for child labor law violators. As mentioned in Section III.A, FLSA violators are currently subject to a maximum fine of $15,138 for each child labor violation and can be fined up to $68,801 for each violation that causes the death or serious injury of any employee under eighteen.¹⁷⁴ By assessing fines per violation,¹⁷⁵ WHD is also able to stack penalties against violators depending on the severity of the conduct. But while these fines may be costly, the FLSA penalization scheme often feels woefully insufficient based on the harm suffered.

For instance, a contractor that hired a fifteen-year-old boy to do roofing work on a corporate building was fined $117,175 in civil penalties for FLSA child labor violations, but the harm the boy suffered included falling fifty feet to his death on his first day of work.¹⁷⁶ Proportionally, the civil penalty feels inadequate given that the boy lost his life in a job he should have never been hired for. To make matters worse, the fines collected in such a tragedy only go toward “reimbursement of [WHD’s] costs of determining the violations and assessing and collecting such penalties.”¹⁷⁷ No compensation exists under the FLSA for the victim or their family. Depending on the size of the irresponsible employer cited, a six-figure fine may not be enough of a deterrent for risky behavior.

In lieu of fines, WHD may hold an irresponsible employer accountable by activating the “hot goods” provision of the FLSA, allowing WHD to prevent the sale of any goods made using oppressive child labor.¹⁷⁸ This provision was used in 2023 against a Wisconsin sawmill operator following the death of a sixteen-year-old who was caught in a wood-stacking machine, resulting in the company’s goods being withheld from shipment.¹⁷⁹ Ultimately, in exchange for WHD releasing its hold on the goods, the sawmill operator agreed to $190,696 in civil penalties for numerous child labor violations and to place labels and signage to prevent children under eighteen from using dangerous equipment at the sawmill.¹⁸⁰ The company then fired all employees under the age of eighteen.¹⁸¹ While costly and inconvenient for the sawmill operator, the threat of such fines did not prevent the tragic outcome in the first place.

Given that child labor violations, even those involving the death of children, generally result only in civil monetary penalties that are limited by statute, Congress should revisit the effectiveness of the FLSA’s penalization scheme. The current scheme does not make up for the serious harm children sometimes suffer, nor are the penalties adequate to deter irresponsible actors from using and abusing the labor of unaccompanied children. While many responsible employers will be sure to hire competent counsel to guide their compliance efforts, irresponsible employers may not and might expose children to risk based on a cost-benefit analysis.

To illustrate an extreme case, a slaughterhouse sanitation company was fined more than $1.5 million after WHD investigators found over one hundred children employed by the company cleaning slaughterhouses across the country.¹⁸² Some of these children were as young as thirteen and suffered chemical burns, and DHS investigated possible human trafficking after finding that some of the children were unaccompanied minors.¹⁸³ In addition to chemical burns and working overnight shifts after attending school all day,¹⁸⁴ the children also lost their jobs in response to government fines and saw no compensation from the penalties levied on their employer, aside from the end of their exploitation. While the sanitation company lost some contracts with major corporations¹⁸⁵ and paid a hefty WHD fine, it otherwise showed few, if any, signs of a long-term setback in operations and still employs about 16,500 workers nationwide.¹⁸⁶ The children who were the subject of the violations arguably fared much worse, specifically the unaccompanied minors, as such children are often motivated to work to send money home to their families¹⁸⁷ and probably needed their jobs, however exploitative. Moreover, if the sanitation company properly terminated the unaccompanied minors in its employ, the unaccompanied minors were likely left with no recourse whatsoever, as the FLSA provides no private cause of action for victims of child labor violations.

While this Note assumes that most employers want to do the right thing and do not wish to exploit children, irresponsible or negligent actors do exist. So, what statutory fixes can be made to increase deterrence? As noted earlier, several bipartisan bills have been proposed in Congress in recent years to strengthen the penalties for child labor violations.¹⁸⁸ An interesting bill advanced by Senators Brian Schatz and Todd Young, the Stop Child Labor Act,¹⁸⁹ proposed to increase the maximum FLSA fines to $132,270 for common child labor violations and $601,150 for violations that result in serious injury or death to a minor.¹⁹⁰ It also proposed a private cause of action for exploited children to seek up to $250,000 in punitive and compensatory damages in federal court.¹⁹¹ By proposing increased fines and a private cause of action, the senators’ bill addressed two issues that make current labor law so ineffective as a deterrent for irresponsible employers, thus serving as an intriguing model for how labor law could evolve to safeguard unaccompanied minors.

First, FLSA fines are currently far too low to deter many employers. Even the sizeable $1.5 million fine mentioned above can be a drop in the bucket for many companies. The sanitation company that absorbed the $1.5 million fine was bought for close to $1 billion in 2014¹⁹² and sold for an undisclosed amount in 2018 to a private equity firm with a January 2025 market cap of $210 billion.¹⁹³ While most employers are responsible and seek to avoid child labor violations, irresponsible actors may simply conduct a cost-benefit analysis and turn a blind eye to potential child labor violations in their workplaces if the payoff is high enough. There is also an issue of companies failing to recognize an appreciable risk of harm to children when utilizing staffing agencies or contractors who place children in company workplaces.¹⁹⁴ To have any kind of a deterrent effect, FLSA fines need to be high enough to convince irresponsible employers to seek full compliance with the law. Otherwise, if the cost is negligible, irresponsible actors will simply build potential penalties into their business models and accept the risk of getting caught. The Stop Child Labor Act proposed increasing the minimum and maximum fines nearly tenfold, with penalties increasing annually in lockstep with the consumer price index for all urban consumers.¹⁹⁵ It is hard to say whether these increases would be enough to properly incentivize every irresponsible actor to comply with the law or too punitive for responsible employers who mistakenly violate the law, but increases of any kind are a start and are recommended by this Note.¹⁹⁶

Second, granting a private cause of action to children who suffer exploitation may be more effective than assessing WHD penalties in remedying the harm caused, provided that responsible employers are protected from unnecessary and unfair litigation. The Stop Child Labor Act’s inclusion of liability in the form of punitive and compensatory damages for child victims is a model that could help increase deterrence and provide an avenue for unaccompanied minors to seek justice, an avenue which does not currently exist. As seen earlier, employers who are fined by WHD for child labor violations sometimes terminate all minors in their employ, even children who are not the subjects of the violations. Due to the particular needs of unaccompanied minors, they may be incentivized to work, even if the work is exploitative. Thus, losing a job, even an exploitative one, can harm these children more than it helps at times. In such a situation, government action essentially victimizes unaccompanied minors further, exposing them to a vicious cycle in which they are exploited in a job that they need, fired when DOL cracks down, and then forced to find another available job, even if it too is dangerous. Providing such children with a cause of action would give them a remedy to their individualized harm. Moreover, litigation can enable facts to come to light that demonstrate the true harm that unaccompanied minors at times suffer.

The federal government will soon be able to look to Colorado to see whether a private cause of action is viable. Colorado added a private cause of action to its labor code for aggrieved children who suffer child labor violations, which became effective on January 1, 2025.¹⁹⁷ Depending on the violation suffered, a child can recover anywhere from $500 to $65,000.¹⁹⁸ This scheme provides an outlet for exploited children to seek redress where they otherwise may not have been able to. It is worth noting, however, that such a system could be abused by children who lie about their ages, thus burdening responsible employers. Unaccompanied minors seeking work are not immune to misrepresenting their ages to employers. Importantly, Colorado’s additions to its labor code protect responsible employers by allowing actions against an employer to be waived if a minor intentionally misleads the employer about their age.¹⁹⁹ Further employer protections may be needed to avoid incentivizing frivolous litigation, such as limiting an employer’s liability in situations in which the employer was merely negligent. A delicate balance must be struck so that unaccompanied minors can seek justice and compensation without employers bearing an undue burden by having to litigate unnecessarily.

Increased fines and the availability of a private cause of action for exploited minors, with some guardrails to protect responsible employers, would add an appropriate level of deterrence to existing law and provide an avenue for unaccompanied children who are wronged to actually be compensated for their harm. Without strong deterrents, the rate of child labor violations nationwide may continue to increase, leaving unaccompanied minors at an increased risk of exploitation. At a minimum, Congress must properly fund DOL so that WHD can continue its important mission of uncovering exploitation of unaccompanied minors in the workplace.

C. Summary of Solutions

To reduce the risk of unaccompanied minors being exploited in U.S. workplaces, a number of measures need to be taken. As discussed in Section IV.A, Congress should first ensure that ORR never waives background checks for sponsors. Next, Congress should amend the TVPRA to require ORR to monitor children formerly in its custody and record school attendance and employment statistics for unaccompanied children, as well as qualitative data about each child’s experience with their sponsor. This monitoring can be accomplished by ORR increasing post-release services for all children and creating an information-sharing agreement with DOE to track school attendance among unaccompanied minors. Moreover, regulations should be implemented to require sponsors and unaccompanied children placed into their care to report to ORR periodically. To meet the mission of monitoring hundreds of thousands of paroled children, Congress will have to direct proper funding and resources to ORR, as well grant ORR the statutory authority to reclaim custody and find new sponsor homes for children whose sponsors fail to care for them.

Addressing ORR’s issues alone is not sufficient. A whole-of-government approach is required, whereby Congress must properly fund DOL so it can increase enforcement actions against irresponsible parties engaging in illegal child labor. Increased enforcement can be accomplished only by properly staffing WHD, which requires DOL to be fully funded. Additionally, Congress should act to increase the penalties that DOL can assess for child labor violations and create a cause of action for victims of illegal child labor, provided that any cause of action has proper protections built in for responsible employers. If implemented as a comprehensive set of reforms, these solutions will minimize the risk of unaccompanied children being victimized and exploited for their labor.

CONCLUSION

This Note sought to identify the gaps in federal immigration law and labor law that increase the risk of labor exploitation for unaccompanied minors who are placed in sponsor homes in the United States. While immigration law and labor law are usually looked at separately, this Note set out to recommend a comprehensive set of measures that could be taken in both areas of law to meet the common goal of mitigating the risk of harm that unaccompanied minors face due to their unique circumstances.

In making these recommendations, this Note examined a series of overlapping statutes and policies that are either structurally unsound or undermined by congressional inaction and underfunding. The TVPRA’s text and ORR’s approach to child placement are too relaxed and put unaccompanied children at an increased risk of exploitation. The TVPRA mandates government action only while unaccompanied minors are in ORR custody and relieves the government of any responsibility once children are placed into sponsor homes. Moreover, ORR does not have the resources or infrastructure available to effectively monitor every child that it releases from its custody. Similarly, while the basic structure of the FLSA is sound, the statute is undermined by relatively weak penalties and provides no avenue for child victims to seek compensation for the harm they suffer. Moreover, although Congress has signaled that it wants child labor protections to be enforced, it has underfunded the agency responsible for upholding child labor laws for years, leaving DOL understaffed and unable to meet its critical mission of holding irresponsible employers accountable and ensuring a safe workplace for children and adults alike.

Protecting unaccompanied children from labor exploitation cannot be accomplished by addressing only one set of laws or a single federal agency. A whole-of-government approach is needed whereby the legislative branch addresses gaps in current law and the executive branch uses all of the levers at its disposal to combat the issue. Legal adjustments in both immigration law and labor law and congressional funding are needed to empower ORR and DOL to fulfill their missions, and interagency agreements should be entered into and maintained in order to safeguard unaccompanied minors through their entire journey with the UAC Bureau. In the immigration arena, Congress should amend the TVPRA to require ORR to monitor children who are released from government custody until their immigration matters are settled or they age out of the UAC Bureau, and ORR must be given the authority to reclaim custody and find new sponsor homes for children who are being abused or exploited by their sponsors. ORR should also find creative ways to monitor children in lieu of increased federal funding, such as entering into an information-sharing agreement with DOE. Finally, sponsors and unaccompanied children should be required to check in with ORR as a means to demonstrate that the child is being properly cared for.

Once children have been released from ORR custody, DOL is uniquely positioned to safeguard them from employer exploitation. But DOL needs to be properly funded by Congress to be able to adequately monitor and respond to reports of illegal child labor. Understaffing has hindered DOL’s ability to investigate illegal child labor, which puts unaccompanied minors at a greater risk of harm in dangerous workplaces. While an information-sharing agreement with ORR to identify potential exploitation or trafficking amongst unaccompanied minors is a good start, DOL needs help from Congress regarding enforcement. Congress should first update the FLSA to ensure that financial penalties are high enough to act as a proper deterrent against illegal child labor. Congress should also consider providing victims of illegal child labor with a private cause of action to seek individual justice, so long as proper protections exist to prevent frivolous litigation against responsible employers.

Unaccompanied children are a particularly vulnerable group, made even more so by the shifting political winds in the United States. With the current gaps in federal law and new leadership in the executive branch every four years, unaccompanied minors are falling through the cracks and ending up in prohibited workplaces. No single agency or statutory scheme is capable of protecting each child through every step of their immigration journey. But through a collaborative and whole-of-government approach, the United States can address the shortcomings in federal immigration and labor law to properly mitigate the risk that unaccompanied children face exploitation. If Congress truly cares about children being exploited in the workplace, it should not hesitate to act by amending the TVPRA and FLSA and properly funding ORR and DOL. Congressional critiques of these agencies will not fix the structural problems hampering their performances; only congressional action can do that. The federal government has properly committed itself to protecting unaccompanied children, but it is long past time that it lives up to that commitment.

98 S. Cal. L. Rev. 761

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Charlie Murphy*

* Senior Editor, Southern California Law Review, Volume 98; J.D. Candidate 2025, University of Southern California Gould School of Law; B.A. 2011, Emerson College. Thank you to Jeremy Gartland, Isabelle Yuan, Michelle Solarczyk, and the staff of the Southern California Law Review for their expert edits and wonderful feedback, and to Professor Rebecca Brown for her guidance and tutelage.

I especially want to thank Professor Henna Pithia and my International Human Rights Clinic classmates. Advocating for the rights of vulnerable and politically unpopular groups requires bravery and sacrifice, and the passion that Professor Pithia and my IHRC family brought to their work inspired me in writing this Note and left me in awe.

Criminalization: An Exceptionally American Response to Homelessness

July 2025July 2025Jacob Schwessinger*

This Note analyzes the recent trend of criminalizing homelessness in the United States. The first half discusses homelessness through the lens of American exceptionalism as a comparative tool. Comparing America to its international peers helps us better understand why America’s response to homelessness has become increasingly punitive. In doing so, the Note makes a novel contribution to American exceptionalism literature in applying the concept to homelessness. Specifically, it shows that while American homelessness rates are not unusually high, American shelter rates are unusually low relative to other western democracies. The Note shows this by combining national homelessness reports into a single dataset and document. The second half of the Note discusses current constitutional doctrine relating to homelessness, focusing on City of Grants Pass v. Johnson. This section uses the first half’s analysis to show why, contrary to the Supreme Court’s decision, the Ninth Circuit’s ruling was, at its core, correct on a legal and sociological level in applying status crimes doctrine to homelessness. In doing so, the Note builds on others’ defenses of the Ninth Circuit’s ruling by both adding to those legal arguments and bolstering them with a sociological grounding, offering a new way of thinking about status crimes in general and homelessness in particular. The Note mounts a defense not only of now-outdated homelessness constitutional doctrine, but also of a shift in American political culture that recognizes homelessness as a product of social circumstances rather than individual failure. Such a change is a necessary prerequisite for curbing, on legal and political levels, America’s intensifying trend of criminalizing homelessness, the first step in bringing America in line with its peers and actually solving homelessness.

Introduction

In 2010, Debra Blake, a resident of Grants Pass, Oregon, lost her job.¹ Already in a precarious financial position, she could not afford to remain in her home and was forced out.² For the next ten years, she had no choice but to spend her nights in a variety of locations, either in temporary shelters or on the streets of Grants Pass.³ This already devastating and tumultuous experience was made worse beginning in 2013, when Grants Pass began issuing civil citations to people sleeping on public property.⁴ Between 2013 and 2019, Blake accumulated over $5,000 in fines.⁵ If she did not pay those fines and was caught by the police on city property, she would be subject to criminal prosecution for trespass.⁶ With nowhere else to go, Blake was on the brink of just such a prosecution. Before any prosecution could take place, however, Debra Blake died. Little is publicly known about her death. She was sixty-two.⁷

Blake’s story is tragic, but it is far from unique in the United States. As of 2024,⁸ over 770,000 people were living without a home or apartment in America.⁹ In response, cities across the country, including Grants Pass, have passed laws and regulations increasingly hostile to their homeless residents.¹⁰ Before passing away, Blake filed a class action lawsuit with other homeless residents against Grants Pass.¹¹ She alleged that the practice of fining people for sleeping on public property violated the Eighth Amendment’s ban on status crimes—crimes which criminalize people solely for their states of being rather than their actions.¹² Although she did not live to see the result, the Ninth Circuit agreed with her claim that the city’s practice was unconstitutional.¹³ Grants Pass, however, appealed the case to the Supreme Court, which in 2024 ruled in favor of the city.¹⁴ The ruling solidified and gave constitutional cover to the nationwide trend of municipalities criminalizing homelessness.

How did we get here? What has led to so many towns and cities in the United States to criminalize homelessness? Is America unique in this regard? How should the Court have ruled? This Note explores these questions through the concept of American exceptionalism and American history to better understand and justify legal doctrine and arguments surrounding the criminalization of homelessness.

The first half of this Note, Part I, explains American homelessness and compares it to America’s international peers. Section I.A outlines its methodology showing that an approach to legal scholarship that puts black-letter law in social context is imperative for understanding law. Section I.B introduces newly synthesized data on homelessness rates and shelter rates among western democracies where data is available, showing that while America’s homelessness rate is not uniquely high, its rate of unsheltered homeless people is. The subsequent parts of this Section explain these findings. Section I.C examines government spending and America’s comparatively weak social safety net writ large. Section I.D outlines American public opinion and ideology, unveiling a culture of individualism over collectivism using a variety of political documents and public opinion polling. Section I.E discusses the role of race and homelessness, showing how America’s history of racial oppression enables and exacerbates the problem of homelessness. Section I.F explains America’s turn towards criminalization as a “solution” to homelessness, embedding it in larger trends of American history and ideology.

The second half of this Note, Part II, outlines and defends current Ninth Circuit legal doctrine on homelessness. Section II.A gives an outline of current law, showing how the Ninth Circuit used the Eighth Amendment’s status crime doctrine to bar cities from utilizing what is effectively a loophole in constitutional law. Section II.B examines the arguments made in City of Grants Pass v. Johnson. Section II.C analyzes the Supreme Court’s eventual decision in the case. Section II.D defends the Ninths Circuit’s ruling against the Court’s decision. It takes the stance that the Ninth Circuit’s understanding and application of status crime doctrine fits well within the more collectivist understanding of reality as comprehended by those in other western democracies. Finally, Section II.E calls for a change in popular American ideology that is likely to motivate the Court’s decision and current municipal law. Only a shift away from an individualist and towards a collectivist understanding of society can fuel the political will to change homelessness law.

Homelessness Compared and Explained

This Part uses the lens of American exceptionalism to elucidate homelessness data and policy in the United States, comparing it to other western democracies in order to better understand America’s turn to criminalization as a “solution” to homelessness.

A.A Preliminary Note on Method

This Note takes a relatively unique approach to the study of homelessness law and doctrine. That is, it does not take law as an isolated field that can (or should) be studied on its own, or with a mere dash of policy analysis thrown in at the end. Rather, it sees law as embedded in and determined by social context. Such a strategy, according to some, has been described as “the single most revolutionary development in modern legal thought.”¹⁵ This is not to say that all legal research must consider law this way. Rather, it is to say that doing so is useful and worthwhile, one of many forms that legal analysis and thought can take. Thus, while not all analysis in this Note is directly legal, the consequences of the ideology and governmental policies outlined in this Note are directly legal, manifesting in municipal decisions to criminalize homelessness and court decisions responding thereto. In addition to the strictly legal arguments made below, another contribution of this Note is an analysis of what motivates recent American legal trends. Such an analysis is imperative not only for understanding and evaluating current trends, but also for analyzing the root causes and offering solutions in domains that extend outside of law yet influence law, such as notions about what has to change in popular American political ideology. When legal arguments go hand-in-hand with political arguments, since law is always bound up with politics,¹⁶ they become all the more potent. As such, this Note takes an approach that is interdisciplinary and necessarily so.

The first half of this Note uses the lens of American exceptionalism to help explain homelessness. There are many approaches to the understanding and use of the concept “American exceptionalism.”¹⁷ This Note seeks to add to the body of literature exploring American exceptionalism by examining a previously understudied topic: homelessness and homelessness policy. The Note deploys a method close to that developed by Charles Lockhart in The Roots of American Exceptionalism. That is, it utilizes a schema that draws on historical, institutional, and cultural variables to explain both the nuances of America’s homelessness problem as well as America’s political reaction to homelessness.¹⁸ In doing so, this Note shows certain aspects in which America is exceptional with regard to its stance towards homelessness, which is reflected both in its policy and ideological belief system.

Moreover, placing America in a comparative light helps explain why America’s response has been increasingly punitive. By analyzing recent American history, one can see how criminalizing homelessness fits within larger cultural and structural trends. A comparative understanding of American societal disposition towards economic opportunity in general and homelessness in particular is imperative for understanding why America is making the choice to criminalize homeless people. These trends explain why the Supreme Court chose to reverse the Ninth Circuit’s ruling in Johnson.¹⁹ But first, these underlying trends must be identified, and they are examined below.

B. Homelessness Compared

This Section conducts a brief, international comparison of homelessness rates to see if and how America is unique with regard to its treatment of homeless people. Delving into a data collection that is the first of its kind, this Section shows that while the rate of homelessness in America is not exceptional, the percentage of homeless Americans who are unsheltered is very high relative to other western democracies.

Numerous reasons might lead one to suspect that America has an exceptionally high homelessness rate compared to other western democracies.²⁰ For instance, the United States, even after taxes and monetary transfers, has a very high level of income inequality relative to other western democracies.²¹ Its “Gini Coefficient,” which measures income inequality, ranks higher than Australia, New Zealand, Canada, and most European Union countries.²² Moreover, since the 1980s, the share of income going to the top 10% of earners has consistently increased on an annual basis.²³ While the United States used to have a more egalitarian distribution of income in the early 20th century, this is no longer the case today.²⁴

However, a closer examination of the data²⁵ on homelessness rates from other western democracies reveals that, in this realm, America is unexceptional:

Figure 1. Percentage of Population Homeless by Country

Note: Data assembled by the author. See Appendix infra for methods.

Figure 1 shows the rate of people experiencing homelessness by the percentage of the population of the country in which they reside. Essentially, it is the homelessness rate of each country. As the chart shows, the homelessness rate in the United States is not particularly high compared to other western democracies. Among seventeen other countries where data is available, the United States ranks as having the seventh highest homelessness rate. Its rate almost exactly matches the overall homelessness rate for the European Union.²⁶

But homelessness rates alone do not tell the whole story. Delving deeper into the data, when one examines the percentage of homeless people spending nights unsheltered, one sees a very different picture:

Figure 2. Percentage of Homeless Population Unsheltered by Country

Note: Data assembled by the author. See Appendix infra for methods.

Not all countries included in Figure 1 have data available for the rate of unsheltered homeless people in the studies used. Still, thirteen countries do. Figure 2 shows that the percentage of unsheltered homeless people is far higher in the United States than it is in most other western democracies. Its rate of unsheltered homeless people is 33% higher than the next closest country, New Zealand. It is approximately double the EU average. Of the countries examined, only Czechia has a higher rate. Thus, while the United States does not differ in kind from other western democracies in this respect, it does significantly differ in degree.

As such, although there is not a particularly large number of people experiencing homelessness in the United States relative to other western democracies, the percentage of these people that are unsheltered in the United States is relatively high. This difference is important for both analyzing the problem itself and for understanding how America has reacted to homelessness. If America had a unique level of homelessness, one would seek to explain this phenomenon by examining the root causes of homelessness. However, given that America has an unusually high number of people living outdoors or on the streets, this means that shelter availability is comparatively low in the United States relative to other western democracies.

This specific intervention is important. Homelessness has been hitherto neglected in the debate around American exceptionalism. This is likely because, at first blush as shown above, America does not have an exceptionally high rate of homelessness. Still, there is a popular perception that America does have a much higher homelessness rate than other western democracies.²⁷ The major difference between America and its peers is the rate of shelter availability. Because people (especially in the United States) do not see the level of homelessness in Europe, they think it does not exist.

Therefore, to understand why America is exceptional in the realm of homelessness, the subsequent four Sections of this Note seek to understand America’s response to homelessness rather than homelessness’s causes.

C. The Social Safety Net

The first factor that helps explain why America lacks the homeless shelters that other western democracies have is the relatively weak social safety net its state, local, and federal governments maintain. Seen in this light, America’s lack of homeless shelters is not an isolated fact that sets it apart from other western democracies. Rather, it is part of a larger trend concerning America’s relatively weak social safety net.

In general, American total government expenditure is less, as a proportion of its total GDP, than most other western democracies. In 2019, for example, the U.S. government’s expenditure as a percentage of GDP was 36%, while France’s was 55%, Sweden’s was 48%, the United Kingdom’s was 38%, and New Zealand’s was 39%.²⁸ Although these are only a few examples, there is a general historical trend of the United States’ government being outspent by other western democracies.²⁹ This is in spite of the fact that America wildly outspends those same countries on maintaining its military, accounting for 39% of the world’s military expenditure.³⁰

This difference in government spending is reflected in the provision of a variety of social services. For example, many other western democracies own and operate their railroad and airline systems.³¹ In America, however, the federal government has not made a similar commitment. The same can be said for the operation of utilities. While other western democracies often directly operate means of communication (like telephone lines) or energy distribution (like gas and electricity), the United States has largely left the operation of these basic necessities to the private sector.³² There is thus a more minimal role of government in the coordination of economic activity in America compared to other western democracies.

America’s social safety net is similarly weak. In a wide variety of areas, from mandated maternity leave to child day care to low-income housing, the U.S. government³³ provides comparatively less to its residents than most other western democracies.³⁴ A paradigmatic example of this trend is healthcare. The United States is the only western democracy to not ensure medical insurance coverage for virtually all of its residents.³⁵ This is partially due to the fact that the United States achieves its 90% health care coverage through a patchwork system of private insurers and government programs like Medicare and Medicaid.³⁶ Moreover, the story goes further than simply who is providing the care. The United States has largely left other key elements of the healthcare system to the private sector, such as price-setting. This has also contributed to the United States’ relatively high cost of healthcare.³⁷

In sum, America has a relatively weak social safety net compared to other western democracies. This is intertwined with the fact that the U.S. Constitution does not announce rights in a positive sense. Rather, it accords negative rights. The Constitution’s Bill of Rights consists of private activities that the government will be largely restrained from infringing upon, like the right to freedom of speech, the right to bear arms, and the right against cruel and unusual punishment.³⁸ Commonplace in other western democracies, however, are positive rights. These are rights that promise positive provisions that the government accords its citizens, such as food, shelter, and healthcare.³⁹ While not all of these guarantees are necessarily lived up to by those governments, particularly those of poorer nations, the presence of de jure positive rights nonetheless signals a difference between America and its peers.

Thus, on a structural level, the United States’ relative lack of shelter for people experiencing homelessness fits well in this larger picture. America’s government spending in general and social safety net in particular are far weaker than other western democracies. Even though America’s economic and housing systems have not produced more homeless people, a relative lack of spending in social programs can begin to shed light on why American governments—federal, state, and local—have not been willing to build more shelters for those experiencing homelessness.

But more explanation is needed. America is, after all, a democracy.⁴⁰ Why have Americans refrained from voting to expand their welfare state? Why are they not voting to expand government funding to include the construction of homeless shelters? What explains the gap between America and its peers?

D. Public Opinion and Ideology

To explain America’s relatively weak social safety net in general and its refusal to adequately shelter homeless people in particular, a deeper dive into American ideology and voter belief is necessary.⁴¹ This Section does exactly that, using a variety of public opinion polling as well as the documents of elected officials to show how ideological beliefs around individualism inform American social policy and homelessness policy.

To engage popular ideology, public opinion polling is a useful place to start. Karabel and Laurison summarized a number of useful studies comparing American public opinion to public opinion in a variety of other countries.⁴² Their analysis was enlightening. America was an outlier relative to other western democracies in a variety of ways. Americans were more likely to value freedom over equality than those in other western democracies surveyed.⁴³ More specifically, Americans were more likely to believe that the freedom to pursue life’s goals outweighed the importance of the state guaranteeing that no one is in need.⁴⁴ While the percentage of people favoring this statement was roughly 25% in France and 31% in Germany, it was over 60% in the United States.⁴⁵ Additionally, almost 50% of Americans in one survey thought that “it should not be the responsibility of government to reduce income differences.”⁴⁶ Amongst the other countries included in the survey, only New Zealand scored higher, and did so only by a small margin. The analogous proportion in most other western democracies was far lower. In another poll, the percentage of Americans surveyed who thought that private ownership of business is preferable to government ownership of business was over 60%, higher than any other western democracy surveyed.⁴⁷ The analogous figures for Germany, Australia, and Canada were roughly 38%, 39%, and 52%. Finally, most on the nose, Americans agreed with the statement “it should not be the responsibility of government to provide for the unemployed” at a rate of roughly 49%.⁴⁸ This rate was higher than every other country surveyed, except for New Zealand.

From these surveys, we can conclude that Americans not only value personal freedom more than economic equality at a higher rate than other western democracies, but also that Americans are less willing to endorse government action to assist people in dire economic straits.

Still, the differences run deeper than mere social values and government actions. Americans surveyed also differed in their explanations for the root causes of social realities themselves. For instance, one question asked whether “people are poor because of laziness and lack of willpower” or “poor because of an unfair society.” In America, 62% agreed with the former, the highest proportion of any western democracy surveyed.⁴⁹ While 50% of both New Zealanders and Australians agreed with that statement, the analogous rate for Finland and Germany was 23% and 17%, respectively.⁵⁰ Relatedly, Americans were more likely to believe that their society is meritocratic. For instance, 63% of Americans believed that success is determined by hard work rather than luck and connections, scoring higher than all other western democracies except for Finland.⁵¹ Finally, the United States had the highest rate of disagreement with the statement “success in life is pretty much determined by forces outside our control,” relative to other western democracies.⁵² Almost 70% of Americans disagreed, while most other countries surveyed had disagreement rates of 50% or less.⁵³

Thus, majorities of Americans tend to see poverty not as a social failure, but as a personal one. Moreover, Americans tend to hold these views at much higher rates than most if not all other western democracies.

These attitudes are not only passively held by Americans, but also actively practiced by their elected officials. One can see these ideas made manifest in Paul Ryan’s A Roadmap for America’s Future.⁵⁴ In the proposal, the former Speaker of the House of Representatives meticulously lays out not only policy proposals, but also philosophical and historical rationales for those proposals. These policies largely consist of scaling back levels of spending on the federal government’s social safety net. To justify these rollbacks, he appeals to many of the values outlined above, such as personal freedom and individual responsibility. He justifies his favor of markets and individual freedom by stating that in market-based economies, like America’s, “no individual or family is bound to their circumstances: they can advance, they can improve their conditions, through their own efforts.”⁵⁵

Ryan sees this “freedom” as being threatened by government intrusion into the economy through the expansion of the social safety net. Writing of efforts to expand welfare programs, he writes that “government increasingly dictates how Americans live their lives . . . [b]ut dependency drains individual character, which in turn weakens American society.”⁵⁶ Thus, although Ryan is a partisan actor arguing for particular policy solutions, here he is appealing to broader sentiments that resonate with large majorities of the American public.⁵⁷ The economic failures of individuals are not seen as rooted in structural economic forces. Rather, they are seen as failures of individuals not “bound to their circumstances.’’⁵⁸ Moreover, government action aimed at solving these problems not only fails but exacerbates them. This is in marked contrast to other western democracies, in which even conservative party members do not seek to dismantle welfare state policies.⁵⁹

Government entities, however, are not the only entities that can be used to combat poverty in general and homelessness in particular. Private charity and faith-based organizations can also play a role. The United States has the highest rate of religious belief among western democracies.⁶⁰ Although the religious belief of its residents has been moderately decreasing in recent decades, it remains comparatively strong.⁶¹ Churches are an increasingly used source of housing for homeless shelters.⁶² Some politicians have also voiced support for faith-based solutions to homelessness.⁶³ Given these facts, one might suspect that while Americans may be averse to government-run shelters, they may be more supportive of private, faith-based shelters. The data, however, simply does not support such a view. Faith-based shelters make up only 4% of shelter beds available to homeless people.⁶⁴ Thus, the American ideological emphasis on self-responsibility for one’s economic conditions outweighs both private, charitable responses as well as publicly funded ones.

Of course, many Americans see economically deprived individuals as the products of circumstances and many Europeans view poor individuals as personally responsible for their economic circumstances. America has no monopoly on these views. However, these ideas are substantially more widespread in the United States than in other western democracies. They are also reflected in U.S. government policy. When economically destitute individuals, like Debra Blake, are seen as solely, personally responsible for their situation, it is less likely that people holding those views will favor government policies to help people falling on hard times. This means that government-run shelters are less likely to receive political support. Other western democracies, meanwhile, are more likely to see homelessness as a product of social circumstances and societal failure, and therefore provide shelter.

Seen through this lens, America’s disinclination to build shelters for individuals facing homelessness does not arise through some unique hatred that America has for homeless people, but rather as part of a larger narrative about the way Americans and policy-makers think about poverty and its root causes.

E. Race and Homelessness

Inextricable from an explanation of homelessness in the United States is an account of who experiences homelessness. This Section shows not only the racial disparities of those experiencing homelessness, but also uses those demographics to help explain American homelessness policy and posture.

Obviously, the people who experience homelessness are those in poverty. Along these lines, Black and Latino people are already overrepresented, with roughly 20.1% of Black folks living in poverty in the United States today, despite being only 13.5% of the population.⁶⁵ The respective numbers for Latino folks are 28.4% and 19.3%.⁶⁶ But the numbers are even more exacerbated when it comes to homelessness. While 24.1% of homeless people are Latino, a staggering 37.3% of homeless people identify as Black.⁶⁷ Thus, the intersection of homelessness and race, at least for Black folks, is not merely equivalent to that of poverty and race. Rather, homeless people are disproportionately Black at a rate even more extreme than that of poverty.

We know that the general causation of these gaps in economic wealth, income, and opportunity are due to longstanding racial oppression.⁶⁸ But what effect does the fact that the majority of people sleeping on America’s streets are nonwhite have on our homelessness policy? Although a concrete answer is multifaceted and can probably only be arrived at indirectly, critical race theory can help provide answers. Doing so will help explain why America’s majority-minority homeless population does not receive the same amount of government and public care and attention as other countries.⁶⁹

One book within the discipline of critical race theory that can help explain why the racial makeup of the homeless population likely has an impact on the way homeless people are treated in the United States is Jody Armour’s book, provocatively titled N*gga Theory.⁷⁰ Although the book largely focuses on criminal law, it highlights important developments in both the history of American racism and recent research into white Americans’ relationship with Black Americans in the realm of cognitive science.

One of Armour’s central claims is that “the dominant brand of anti-black discrimination in post-civil rights era America is not active racial animus but unconscious racial bias.”⁷¹ This view leads Armour to locate the disparities in treatment across races not as the result of conscious racial hatred but rather that of unconscious or subconscious behavior of white Americans.

One of the ways this unconscious bias operates is through disparities in empathy for others as manifested in specific “neuroanatomical circuits underlying . . . cognitive processes.”⁷² Specifically, recent studies show that particular parts of the brain, such as the bilateral anterior insula, the anterior cingulate cortex, and the medial prefrontal cortex are active when individuals are feeling empathy, in both the emotional and cognitive realm.⁷³ Functional magnetic resonance imaging (“fMRI”) technology has allowed neuroscientists to measure when humans are and are not feeling empathy towards others. Unsurprisingly, many Americans tested in these studies show decreased empathetic neural activity when viewing people of different racial groups.⁷⁴ This was true, for instance, when twenty-eight participants were shown scenes depicting individuals of varying racial groups in painful or neutral situations.⁷⁵ Upon viewing these images, people who shared a social-racial identity with the person in need exhibited a higher level of empathetic neural activity than they did with those who did not share their ethnic group.⁷⁶ This was despite the fact that many people would not likely claim they have explicit racial bias, since the social consequences of having such a bias are negative.⁷⁷ Other studies involving mirror-neuron systems, which are responsible for unconsciously mirroring other individuals, show a similar level of racial bias.⁷⁸ Thus, there are empathy gaps across racial lines.

Here, it is important to note that these are not inevitable biological responses to inherent human differences. On the contrary, race is not a biological category, but a social one.⁷⁹ Thus, the status of who is “in” and “out” of one’s social group are constantly in flux.⁸⁰ More importantly, the categories are historically contingent, the outcome of social oppression and not biology.⁸¹ It is likely not the supposed differences in look or skin color that is the cause of these empathy-deficits, but rather socially-reinforced differentiation and hierarchies. Thus, America, as a multiracial liberal democracy, does not inherently have these issues of empathy gaps, but rather has them because of its specifically racist past and present, one that had a beginning and therefore (hopefully) has an end.⁸²

Armour eventually goes on to discuss how these empathy barriers contribute to disparities in judge and jury convictions of Black Americans. How do they apply to homelessness? The answer is probably intuitive: in a majority white country⁸³ with politics dominated by white individuals and interests,⁸⁴ a problem that largely affects nonwhite people is likely to be neglected. The fact that most homeless people are mostly not white means that our political system is less likely to respond urgently to the problem. It is a classic case of structural racism. This was true, for instance, of the natural disaster of Hurricane Katrina in 2005, wherein the government responded slower than it could have, an action which many people attributed to the fact that the people most in need were disproportionately Black.⁸⁵ Moreover, in the man-made disaster of the Flint, Michigan water crisis of 2014, the largely Black population of Flint likely suffered more intensely and received a less urgent response from the state due to the demographic of who was suffering.⁸⁶ In each of these catastrophes, it is likely that the empathy deficits that white officials and members of the public exhibited towards the Black victims contributed to the lackadaisical response by government actors. The same can likely be said for homelessness. If homeless people were not members of an oppressed group, it is likely that there would be a more urgent government response to their plight.

Unconscious bias may explain the lack of a response, but why the personal blame? How does the attribution of individual responsibility to those in poverty (a view that is popular in America and described above) intersect with the government’s general unwillingness to provide shelter to homeless people given the racial lens with which we are operating? Armour’s book has even more answers here. In it, he uses the work of Fritz Heider to show how people ascribe moral blame to individuals.⁸⁷ Specifically, when judging others, people who attribute one’s actions to their social circumstances are less likely to morally blame them for those actions than when they see those actions as stemming from an inner psychology.⁸⁸ When people focus on the situations in which others find themselves, they are less likely to morally blame those others for their bad acts. Applying this to the criminal sphere, a study done by Birt Duncan found that “violent acts tended to be attributed to internal causes when the harm-doer was black, but to situational causes when the harm-doer was white.”⁸⁹ Other studies have verified these findings.⁹⁰

If this phenomenon is occurring in the lab and in the courtroom, it is likely also occurring on the streets. In a country where people are already largely blamed for their actions, and the role of social circumstance is neglected, it makes sense that a racially-charged issue like homelessness would exacerbate this phenomenon. Racial minorities are likely being blamed for being homeless even more intensely than their white peers. Indeed, America’s response to homelessness exhibits precisely the kind of response we would expect if this were the case. Racism, individual and structural, is therefore not only responsible for Black people disproportionately becoming homeless, but also for their remaining homeless. The unwillingness to build homeless shelters and the tendency to blame people for the economic circumstances, which is exacerbated by the history of racial oppression and division in the United States, makes America’s response to homelessness much more understandable (though not justifiable). Thus, the empathy deficit and tendency to blame racial minorities—particularly Black folks—for their actions and economic status intensifies America’s lackluster response to homelessness.⁹¹

F. America’s Turn to Criminalization

The above sections explain why a substantial number of Americans likely, to a sizeable extent, blame homeless people for being homeless, but they do not explain why there has been an increasing trend towards criminalization of homelessness.⁹² This Section addresses this issue. Making sense of this trend requires a broader examination of criminal law and policy. Through this analysis, one can see that criminalizing homelessness and imprisoning people like Debra Blake makes sense according to the ideology of self-responsibility and America’s comparatively harsh criminal system.⁹³

The United States has the highest rate of incarceration of any western democracy, and nearly the highest incarceration rate in the world.⁹⁴ America is remarkably punitive in a number of ways. Not only is it the only western democracy to retain capital punishment, but its sentencing structure is also one of the harshest in the world.⁹⁵ This trend is relatively new. Beginning in the early 1970s, an explosion in the prison population—known popularly as “mass incarceration”—made the United States the world leader in imprisonment rates.⁹⁶ America’s recently learned penal instinct for dealing with social problems is more intense than in any other western democracy.

Coupled with this well-known trend is a lesser known but related trend: a proliferation in economic sanctions incorporated into the criminal system. There has been a surge in civil fines, court fines, and other financial penalties levied against individuals since the early 1980s.⁹⁷ Although debtors’ prisons are officially banned in every state, people who are unable to pay a variety of civil or court-imposed fines are being increasingly imprisoned as a result.⁹⁸

While laws directly, explicitly criminalizing homelessness are practically nonexistent, laws that impose fines on homeless people are increasingly being passed around the country.⁹⁹ This is the kind of criminal penalty that Debra Blake was facing. Although the statute she violated by sleeping on public land only resulted in a fine, a repeated violation of the statute, combined with her inability to pay, would have resulted in a jail sentence.¹⁰⁰ She would not have been the only homeless person with such a fate.¹⁰¹ While other countries have laws that criminalize some behavior associated with sleeping on public property,¹⁰² the wider availability of shelters makes those laws far less relevant to homeless people abroad.

The American instinct to not only blame people facing homelessness for their camping in public but also to actively oppose them through criminalization is also part of a larger trend. Violent attacks on homeless people have been on the rise in recent years.¹⁰³ When homelessness is seen by members of the public as a problem of individual responsibility, it makes sense that when one sees individuals taking up space on public streets or parks, they are angry at the individual rather than the socio-economic system that created the situation. The instinct to criminalize such behavior therefore follows from an individualization of the problem combined with an existing propensity for criminalization. If homeless people are solely responsible for their situation, and their situation interferes with a pedestrian’s ability to move about public grounds unimpeded, the justification for imprisonment on the grounds of public interference also begins to make sense. Imprisonment will solve the immediate problem of getting the person off the street and is justified due to that person’s inability to maintain the economic resources necessary to maintain shelter for themselves.

Of course, such a logic is withdrawn from the social realities that actually create homelessness.¹⁰⁴ While experts disagree on the specific means of reducing homelessness, there is a consensus that to do so, one must dramatically increase the supply of affordable housing and connect homeless people with social services and employment opportunities.¹⁰⁵ Unfortunately, for homeless people and housed people, Americans have a long history of not only ignoring expert opinion, but actively loathing expert opinion and intellectualism writ large. As Richard Hofstadter wrote in Anti-Intellectualism in American Life over 50 years ago, “intellectuals . . . are [seen as] pretentious, conceited, effeminate, and snobbish . . . .”¹⁰⁶ America has no monopoly on anti-intellectualism. Nor has anti-intellectualism as a cultural force been constant in its history. Rather, it is one that fluctuates in intensity.¹⁰⁷ Our current time, however, sees a more intense moment of this fluctuation, rendering a penal response to homelessness that deviates from expert opinion even more likely.¹⁰⁸

This hostility towards both homeless people and experts on homelessness can be seen in America’s current populist wave. While a deep analysis on the relationship between homelessness and populism is worthwhile, it extends beyond the scope of this Note. Still, a brief discussion can be given. Jan-Werner Müller defines populism as “a particular moralistic imagination of politics,” one that establishes a “morally pure” people against elites and outsiders.¹⁰⁹ While modern populists have long derided experts as part of the elite outsiders,¹¹⁰ homeless people themselves are increasingly considered outsiders (and paradoxically paired with elites), deviants who are apart from and opposed to “normal” people. For instance, former Fox News host Tucker Carlson recently argued that homelessness is the result of liberal leaders becoming “more lenient on petty crime” and that “because of their liberal attitudes and the mild climate, [Seattle] is a magnet for vagrants.”¹¹¹ Overall, political populism and a history of punitive responses to social problems are worryingly combining to produce laws that criminalize homelessness in spite of expert opinion.

In sum, America’s penal response to homelessness stems from both its conception of homelessness as a problem of individual failings combined with its comparatively harsh penal system. As a result, homelessness has become a hot-button political issue, one for which populists have whipped up anti-elite sentiment and anger about homelessness to create false narratives about homelessness and advocate punitive solutions thereto.

Homelessness and the Law

Now that an overview of homelessness, in both a comparative and historic-domestic light, has been given, we can return to an analysis of Debra Blake’s case and use it as a microcosm to understand and evaluate homelessness law in general. This Part, divided into several sections, outlines law concerning homelessness, both before and after the Court’s ruling in Grants Pass. Next, this Part argues that America needs a fundamental reckoning on not only the legal level, but also the ideological and social level. Only once our attitudes towards homeless people change from an individualist understanding to a collectivist understanding can our laws change to reflect that understanding. Absent such a deep reckoning, political and legal responses reflecting such a change are virtually impossible.

A. Law Prior to Grants Pass

Although Debra Blake passed away, the case she and her fellow residents filed, City of Grants Pass v. Johnson, did not. This Section outlines the case law surrounding Blake’s claim.

In 1962, the Supreme Court decided Robinson v. California. In Robinson, the Court struck down as unconstitutional part of a California statute that made it illegal “to be addicted to the use of narcotics.”¹¹² The Court reasoned that while it was within California’s power to regulate behavior surrounding and including the use of drugs, criminalizing someone for their status of being addicted to illegal drugs was fundamentally different. In doing so, California was enforcing a “statute which makes the ‘status’ of narcotic addiction a criminal offense.”¹¹³ Rather than criminalizing an action, the status of being addicted to an illegal narcotic was criminalized. The Court likened addiction to a chronic disease, one over which the defendant had little to no control.¹¹⁴ The Court reasoned that “in the light of contemporary human knowledge, a law which made a criminal offense of such a disease would doubtless be universally thought to be an infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.”¹¹⁵ This ruling established what became popularly known as the Eighth Amendment’s ban on “status crimes.”

Six years after Robinson, however, this doctrine was complicated by a case titled Powell v. Texas.¹¹⁶ The case concerned whether or not the state of Texas could criminalize being found drunk “in any public place, or at any private house except his own.”¹¹⁷ The petitioners argued that the statute violated the Eighth Amendment’s ban on status crimes since an alcoholic would have to drink, and would therefore inevitably violate the statute. The Powell Court distinguished the Texas statute from California’s statute in Robinson, however, in a number of ways. While certain parts of the decision argued that being drunk was an act rather than a status,¹¹⁸ other parts highlighted the fact that alcoholic individuals could choose to be drunk in their homes and therefore avoid violating the statute while maintaining their status as alcoholics.¹¹⁹ In a 4 plus 1 plurality, the Powell Court upheld the statute. Although the precedential impact of this decision was disputed,¹²⁰ it is affirmed in the Supreme Court’s decision in City of Grants Pass.

In 2006, a Ninth Circuit ruling found that the Constitution’s ban on status crimes covered homeless individuals. In Jones v. City of Los Angeles, six homeless individuals brought suit against the city of Los Angeles for an ordinance that criminalized “sitting, lying, or sleeping on public streets and sidewalks at all times and in all places.”¹²¹ The Ninth Circuit ruled that the City could neither criminalize the status of being homeless, nor acts that are an inevitable result of being homeless.¹²² The Court linked the status of being homeless to the number of shelter beds available. If the number of homeless people in a municipality “far exceed[ed]” the number of shelter beds available at any given time, the municipality will have violated the homeless individuals’ Eighth Amendment rights by enforcing a statute that criminalizes an integral aspect of their status as homeless people.¹²³ Although this specific ruling was later vacated on technical grounds, its logic and holdings were reincorporated into law for the Ninth Circuit in 2019, in Martin v. City of Boise.¹²⁴ While these holdings were not binding outside of the Ninth Circuit, they are highly relevant, as many states within the Ninth Circuit, like California, Hawaii, Arizona, and Oregon, have some of the highest rates of homelessness in the nation.¹²⁵

B. City of Grants Pass Heads to the Supreme Court

Before Martin, the City of Grants Pass enforced ordinances that fined individuals for sleeping on public grounds.¹²⁶ Although the city modified these ordinances in the aftermath of Martin, it did not repeal them. Rather, it tweaked them to only ban “camping,” which it broadly defined as sleeping while using even rudimentary assistance, like sleeping bags.¹²⁷ Still, after Debra Blake was cited for sleeping while using a sleeping bag on public property in 2019, she filed a class action lawsuit on behalf of all homeless people in Grants Pass, arguing that the city’s ordinance constituted a violation of her Eighth Amendment rights.¹²⁸ The Ninth Circuit agreed, since Grants Pass did not have enough shelter beds to house the homeless population within city limits.¹²⁹ Although the ordinance did not directly criminalize camping, mandating only civil fines, the Ninth Circuit panel found that these fines would still lead to criminal prosecution when they were inevitably unpaid by the homeless people fined.¹³⁰ Furthermore, although one could still “sleep” on public property, sleeping outside in Grants Pass, Oregon, where temperatures regularly dip into the 30s,¹³¹ surely constituted an untenable option. To sleep outside with the assistance of a blanket was the only option for the city’s homeless residents. Thus, the ordinance was struck down as violating the plaintiffs’ Eighth Amendment rights.¹³²

This ruling seemed like a hopeful victory for homelessness advocates, one that put a check on the trend of criminalizing homelessness. But the city appealed the case to the Supreme Court, who in 2024 announced their decision overturning the Ninth Circuit’s ruling to allow municipalities to criminalize homelessness.¹³³

C. The Supreme Court’s Ruling

In a decision that made headlines nationwide in June of 2024,¹³⁴ the Supreme Court reversed the Ninth Circuit’s decision and allowed Grants Pass to enforce its ordinance. Justice Gorsuch authored the opinion and was joined by the Court’s five other conservative Justices. The Court’s three liberals, meanwhile, dissented in an opinion written by Justice Sotomayor. Although the Court split along ideological lines in the decision, the decision was celebrated by conservative and liberal lawmakers alike.¹³⁵ This Section provides an overview of the opinion.

The Court’s decision does not explicitly argue that homelessness is the fault of the individual and therefore subject to criminal liability. Rather, it is implied. Moreover, personal responsibility for homelessness is the result of the Court’s logic. Nonetheless, it is still worth examining the Court’s reasoning in detail. The policy arguments are analyzed first, then the more strictly doctrinal arguments.

Almost cynically, the Court, largely parroting amicus curiae briefs submitted on behalf of Grants Pass, frames the policy criminalizing sleeping in public as one “protecting the rights, dignity[,] and private property of the homeless.”¹³⁶ The decision to ban sleeping in public, by the opinion’s logic, has as much to do with protecting homeless people as it does with serving the interests of the housed public.¹³⁷ The Court also highlights that others (with whom it is siding) have concluded that “[j]ust building more shelter beds and public housing options is almost certainly not the answer by itself.”¹³⁸ Rather, the Court concludes in its first section, after laying out the severity of America’s homelessness problem, that municipalities need “access to the full panoply of tools in the policy toolbox” to combat the issue.¹³⁹

What is odd about this abstract characterization of the problem is that it sees the Ninth Circuit’s ruling as limiting the options that municipalities have to combat the issue. But the ruling does not ban cities from criminalizing homelessness outright. Rather, it limits municipalities from doing so when the number of homeless people exceeds the number of shelter beds. All cities would have to do is build homeless shelters. They could then criminalize sleeping in public as much as they want. This argument is only engaged with indirectly by the Court. Rather than engaging with it substantively, the opinion argues that the standard is somehow not clear enough, since it may be difficult to count the number of homeless people on any given night and because it may be difficult for cities to estimate the number of shelter beds available and build adequate housing.¹⁴⁰ All the analysis really shows, however, is that many cities have not made good-faith efforts to comply with the ruling. Rather, cities have routinely crafted threadbare policies to “comply” in appearance only with the requirements set forth in Boise, then been challenged in court when their policies are shown for what they are, then complained to the courts that the standards are unworkable using their own ineptitude as the evidence. Thus, the Court uses the city governments’ incompetence to justify overturning the Ninth Circuit’s precedent. The logic does not acknowledge the agency of the cities and locates the failure as a lack of possibility rather than a lack of will. In reality, it is not the former, but rather the latter.¹⁴¹

Doctrinally, the Court all but overturns Robinson. The Court states clearly that “[t]he Cruel and Unusual Punishments Clause focuses on the question what ‘method or kind of punishment’ a government may impose after a criminal conviction, not on the question whether a government may criminalize particular behavior in the first place or how it may go about securing a conviction for that offense.”¹⁴² This language leaves no room for Robinson, since that ruling did place substantive limits on what could be punished. The Court states that it does not overrule Robinson because no party argued for it to do so.¹⁴³ Instead, it emphasizes that Grants Pass’s ordinance nominally criminalizes the act of camping rather than the act of being homeless. Responding to the argument that those acts inevitably follow from a status, the Court relies on the plurality in Powell, not discussing the argument that being intoxicated in public as an alcoholic is more voluntary than sleeping outside as a homeless person.¹⁴⁴ The Court gives brief mention of a possible common law “necessity” defense, but does not enforce it against Grants Pass and cites a case in which an Oregon appellate court appears to refuse to apply it to the homeless person cited.¹⁴⁵ Finally, the Court argues that there is no limiting principle that would restrict the conduct possibly off limits from punishment, arguing that the decision is better left to the legislature.¹⁴⁶ Given this, laws that criminalize acts that inevitably follow from a status are constitutional under the Court’s standard.¹⁴⁷ The decision reduces the power of Robinson to a mere linguistic limitation. As long as the government body does not explicitly criminalize a status, it is practically free to do so by punishing an act inevitably flowing from a status.

D. What Should the Court Have Done?

This Section devotes some time to defending the logic of the Ninth Circuit’s ruling and engaging critics who have spoken out against the ruling.

While many in the activist community and some in the legal community have already defended the Ninth Circuit’s logic,¹⁴⁸ many more in the legal academy have criticized it.¹⁴⁹ To defend many of the justifications already set forth above, the Ninth Circuit’s logic makes sense. If it is unconstitutional to punish someone for their “state of being,” something that does not have an actus reus and cannot be controlled by the individual in question, how can one criminalize acts that inevitably flow from one’s state of being? Being homeless, as the Ninth Circuit said in Jones, is no more in one’s control than being addicted to narcotics.¹⁵⁰ Moreover, even though Los Angeles attempted to ban “sleeping” on public property, which is an act rather than a status, the court’s logic was that to ban an act that inevitably follows from a status would be to offer a gaping loophole in status crime doctrine.¹⁵¹ It would allow the government, through a simple workaround, to criminalize statuses just as they had in Robinson. The law can and should hold accountable people who commit acts over which they have control, not acts that they are forced to do out of circumstance. Here, Justice White, in his concurrence in Powell, put the reasoning best:

If it cannot be a crime to have an irresistible compulsion to use narcotics, I do not see how it can constitutionally be a crime to yield to such a compulsion. Punishing an addict for using drugs convicts for addiction under a different name. Distinguishing between the two crimes is like forbidding criminal conviction for being sick with flu or epilepsy but permitting punishment for running a fever or having a convulsion. Unless Robinson is to be abandoned, the use of narcotics by an addict must be beyond the reach of the criminal law.¹⁵²

The same goes for homelessness. If it is unconstitutional to explicitly punish the status of “being homeless,” it should also be unconstitutional to punish acts that inevitably follow from being homeless, like sleeping on the street with a blanket in Oregon.

Moreover, it practically goes without saying that a prison sentence for homelessness will likely be short and will not solve the root causes of homelessness in the first place.¹⁵³ It will merely create a cycle of imprisonment and release that will only intensify and worsen the already terrible experience of homelessness.¹⁵⁴

Other legal scholars, like Martin Gardner, have argued that the logic of five Justices in Powell, and their logical descendants in Jones, apply a logic that would implode the entire criminal justice system.¹⁵⁵ Gardner argues that courts inquiring into the social circumstances of individuals who commit certain acts to determine whether or not they have the proper mens rea for violating a statute “is unwise and poses a radical threat to traditional criminal law doctrine that perhaps even threatens the continued existence of the criminal law itself.”¹⁵⁶ Such hand-wringing is likely unwarranted. Realistically, it is hard to imagine the doctrine of banning status crimes and statutes that indirectly criminalize statuses as going much further than narcotics addiction, homelessness, and perhaps some immigration status issues. Indeed, Gardner himself is light on examples.¹⁵⁷ Thus, a worry that criminal law in general faces a “radical threat” from Robinson and its progeny is likely undue.

But, for a moment, let us assume Gardner is correct, and that the logic of Robinson, Powell, and Jones, which begin to consider the social circumstances that affect the human agency of individuals who commit crimes, does begin to question the underlying premises of criminal law. Below, this Note will take the view that the aforementioned European view of human nature and decision-making is the more accurate one than the hyper-individualistic American view. Considering that view with specific regard to this case, this Note asks: why not? If people accept the underlying logic of Robinson, why not “carry things to their logical conclusion”¹⁵⁸ and begin to inquire into the social circumstances of criminals? It seems that Gardner, like the majority in McCleskey v. Kemp according to Justice Brennan, is simply afraid of “too much justice.”¹⁵⁹

From a more abstract standpoint, the status crime doctrine juxtaposed to the traditional schema for construing criminal law through actus reus and mens rea can be understood as a counter-principle juxtaposed to a principle. That is, while in current law the counter-principle takes up a minority space relative to the space occupied by the general principle, this Note argues in the general spirit of critical legal studies that there should be an inversion between the two.¹⁶⁰ That is, the status crime doctrine could be the central principle from which courts begin their analysis, while the classical view could take the minority, exceptional position.

Finally, as elaborated on below, extending the status crime doctrine to include homeless individuals better reflects the reality of their circumstances. Homelessness is a status, and sleeping on the street is an inevitable act that follows from that status. Legally acknowledging this reality not only offers protections to homeless people, but also narrows the legislative path to policies that actually address the root causes of homelessness.

Although Gardner concedes that such a reconsideration might be warranted, he argues that it must come from the legislative process rather than through courts.¹⁶¹ While there is some merit to this argument, other movements for social change have seen courts play a pivotal role in leading the way, like Brown v. Board of Education, which was responsible for ending the policy of separate but equal across the United States.¹⁶² Furthermore, others have argued that dramatic changes that moderate or curtail criminal punishment are far more likely to come from political elites (even democratically elected ones) than through mass movements or popular referenda.¹⁶³ Thus, the mere fact that courts would be responsible for such a change is not enough to object to the possibility of such change where an alternative route is not possible or highly unlikely to yield results.¹⁶⁴

One aspect of the doctrine that Gardner is correct to criticize is the status crime doctrine’s placement in the Eighth Amendment. Indeed, the Eighth Amendment was originally intended only to curtail certain methods of punishments, rather than impose substantive limits on what could be punished.¹⁶⁵ While originalism is a deeply flawed and unwise approach to constitutional law,¹⁶⁶ the original intent of an amendment should probably carry some weight. As such, Gardner thinks that the status crime doctrine should be constitutionally grounded in the Fourteenth Amendment’s Due Process Clause rather than in the Eighth Amendment.¹⁶⁷ Indeed, Robinson is the only case that has imposed substantive limits on what can be punished under the Eighth Amendment.¹⁶⁸ This Note agrees that a Fourteenth Amendment grounding is the superior place to couch the status crime doctrine. Still, this Note does not agree with Gardner that doing so would necessarily limit the logical and doctrinal consequences of Robinson, nor should it. The same arguments will inevitably be made no matter where in the Constitution status crime doctrine is placed.

In sum, the Court should have upheld the Ninth Circuit’s decision and not allowed municipalities a cheap workaround to avoid status crime doctrine. In doing so, the Court has solidified and given legal sanction to the nation’s increasing trend of criminalizing homelessness.

E. A Change in Ideology Must Now Precede a Change in Law

Now that the Court has delivered its ruling and allowed the criminalization of homelessness, a change in popular ideology and legislative posture must now precede any novel constitutional argument or policy proposals to tackle homelessness. Essentially, popular consciousness must change and precede any future change in legality in this domain. Ultimately, this Note takes the view that the European conceptualization of economic conditions in general, and homelessness in particular, better recognizes reality. People are products of their environment.¹⁶⁹ Luck plays a role not only in the situations into which people are thrown, but also the decisions they end up making in those situations.¹⁷⁰ Once more Americans begin to agree with the statement “people are poor because of an unfair society” than “people are poor because of laziness and lack of willpower,” homelessness policy can turn away from its increasingly penal tendencies and towards building shelters and restructuring economic relations. While the Ninth Circuit’s ruling was imperfect in that it did not explicitly guarantee minimum requirements of safety and standards for homeless shelters,¹⁷¹ it acknowledged that homelessness is a “status” akin to drug addiction—one that is dependent on social circumstances and not controllable predominantly by the individual. Thus, the Ninth Circuit’s ruling already contains in it the ideological shift required by the rest of the country for combatting homelessness. But absent a larger, popular recognition of the principle, our law is unlikely to reflect such a principle.

Many specific policies for ending homelessness do already exist.¹⁷² Moreover, legal arguments, like the ones outlined above and ignored by the Court, also already exist. But all of these are moot absent a shift in popular consciousness away from individualism and towards collectivism.

Conclusion

The Supreme Court decision reversing the Ninth Circuit’s ruling in Johnson is the culmination of long-standing trends of the individualization of societal problems. While America’s homelessness rate is not particularly high relative to other western democracies, its rate of unsheltered homeless people is. This is explained by America’s comparative unwillingness to spend as much as other western democracies on its social safety net. But it is also more fundamentally the product of broadly and deeply held beliefs about the root causes of poverty and homelessness as problems of individual rather than societal failure, beliefs that are exacerbated by structural racism.

The Ninth Circuit’s interpretation of the Constitution’s status crime doctrine makes sense in this light, since it accurately and shrewdly closed a loophole that governments could use to circumvent status crime doctrine. Nonetheless, the Court reversed the ruling and allowed municipalities to criminalize homelessness. The Court’s ruling effectively legitimized the view that homelessness is an individual “failing” like murder and allowed cities to criminalize people like Debra Blake. This Note has argued not only that such a ruling is misguided, but also that it rests on a fundamentally flawed view of how individuals and society interact. America’s legal approach to homelessness must see it as a social problem rather than a problem arising from a set of atomized individuals. The Supreme Court, however, has taken the opposite view. Seen through the lens of American exceptionalism, it is an exceptionally American response to further allow the criminalization of homelessness.

Appendix

Unable to find a previously published report comparing international homelessness rates, the author assembled this data using a variety of sources. This the first known assemblage of such data and should help contribute to future research in the realm of comparative politics and sociology. For Europe and the U.K., the source used is Fédération Européenne d’Associations Nationales Travaillant avec les Sans-Abri (“FEANTSA”)’s 2023 report titled Eighth Overview of Housing Exclusion.¹⁷³ For America, the U.S. Department of Housing and Urban Development’s report titled The 2022 Annual Homelessness Assessment Report (AHAR) to Congress is used.¹⁷⁴ For Canada, the report used is the Government of Canada’s “Everyone Counts 2020-2022” survey.¹⁷⁵ For Australia, see the Australian Institute of Health and Welfare’s data on homelessness and homelessness services.¹⁷⁶ For New Zealand, see the New Zealand Ministry of Housing and Urban Development, Homelessness Outlook report.¹⁷⁷ These reports consist of the most recent available data for each respective country.

Each study qualifies that their methods are imperfect and likely undercount the number of homeless people. The point of this Note is not to be the authoritative comparative source on national homelessness rates, since the data is constantly changing and not always reliable, but rather to generally observe that America has a higher rate of unsheltered homeless people than all western democracies analyzed but one, a limited claim which is justified despite some uncertainty in the data. Furthermore, this Note is meant to offer a starting point for future research on the subject, as homelessness is in flux in both the United States and in Europe.

For the population counts, this Note used the following reports: For Europe, see the same FEANTSA report referenced above.¹⁷⁸ For the United States, see the 2022 Census Bureau Data.¹⁷⁹ For Canada, see 2021 Canadian Census data.¹⁸⁰ For Australia, see the Australian Bureau of Statistics.¹⁸¹ For New Zealand, see the New Zealand Government “Stats.”¹⁸²

It is important to note, however, that various countries define homelessness differently. For instance, New Zealand counts as “homeless” people who are staying with relatives temporarily,¹⁸³ while the United States and other countries do not count this group.¹⁸⁴ Thus, in order to ensure that the proper, equivalent numbers are being compared, the data selected from each of the above sources is limited to people falling into one of three categories: (1) people “sleeping rough,” generally outdoors, (2) people sleeping in various forms of short-term emergency housing, and (3) people spending nights in designated homeless shelters. Thus, for the European data, the data from categories one, two, and three from the European Typology of Homelessness and Housing Exclusion (“ETHOS”) is used.¹⁸⁵ For the U.S. data, no special selection is required. For the Canadian data, “sheltered” and “unsheltered” people are counted.¹⁸⁶ For Australia, the categories of “[p]eople temporarily staying with other households” and “[p]eople living in ‘severely’ crowded dwellings” are excluded.¹⁸⁷ For New Zealand, the number of total homeless people is limited to people “[w]ithout shelter” and to those living in “[t]emporary accommodation,” since including the other categories would have been overinclusive.¹⁸⁸

Compiling the data from the preceding sources yields the following chart:

Figure 1. Percentage of Population Homeless by Country

The table with the raw numbers is included at the end of this Appendix for reference. For the second round of comparisons, which compared countries’ homelessness rate relative to shelter available, the following method of calculation was used. The number of people living without shelter was divided by the number of homeless people using the above methods for determining the number of homeless people. Thus, for the European data, ETHOS category 1 was used.¹⁸⁹ For the United States, the “unsheltered” category was used.¹⁹⁰ For Canada, the “[u]nsheltered” category was used.¹⁹¹ For Australia, the “[p]eople living in improvised dwellings, tents, or sleeping out (rough sleepers)” category was used.¹⁹² For New Zealand, the “[w]ithout shelter” category was used.¹⁹³ The data yields the following chart:

Figure 2. Percentage of Homeless Population Unsheltered by Country

It should be noted that not all countries, particularly in the FEANTSA report, had specific data for the number of people sheltered versus unsheltered. Five countries were unable to be included, therefore, in Figure 2: Finland, France, Ireland, Luxembourg, and Sweden. For the specific numerical breakdown of each category, a chart of the collected data is pasted below. Each number in the chart was collected using the methodology outlined above, and each chart is compiled using this data:

Table 1. Homelessness Data by Country
Country	Homeless Count	National Population	% of Population	Homeless Unsheltered	% of Homeless Population Unsheltered
Belgium	6,700	11,554,767	0.058	1,187	17.71641791
Czechia	19,653	10,649,800	0.185	8,892	45.24500076
Denmark	3,738	5,873,420	0.064	535	14.31246656
Finland	794	5,548,241	0.014	N/A	. . .
France	209,074	67,656,682	0.309	N/A	. . .
Germany	210,612	83,237,124	0.253	32,467	15.41555087
Hungary	6,944	9,689,010	0.072	1,649	23.74711982
Ireland	11,632	5,060,005	0.230	N/A	. . .
Luxembourg	420	590,667	0.071	N/A	. . .
Poland	23,812	37,972,812	0.063	2,551	10.71308584
Portugal	9,604	10,298,252	0.093	N/A	. . .
Spain	16,006	47,432,805	0.034	4,508	28.16443834
Sweden	14,065	9,995,153	0.141	990	7.0387487
EU Rate (FEANTSA)	533,054	305,558,738	0.174	N/A	. . .
United States	582,462	333,287,557	0.175	233,832	40.14545155
United Kingdom	86,288	66,796,807	0.129	17,012	19.71537178
Canada	20,000	36,991,981	0.054	5,000	25.0
Australia	58,002	25,760,867	0.220	7,636	13.165063
New Zealand	11,553	4,900,600	0.230	3,624	31.3684757

Note: Data used to produce Figures 1 and 2.

98 S. Cal. L. Rev. 761

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Jacob Schwessinger*

*Articles Editor, Southern California Law Review, Volume 98; J.D. Candidate 2025, University of Southern California Gould School of Law; M.A. 2021, University of Warwick; B.A. 2020, University of Southern California.

INTRODUCTION

I. TEXTUAL ANALYSIS OF THE PRIVILEGES OR IMMUNITIES CLAUSE

A. Interpreting Privileges and Immunities in Historical Context

A Few Meanings of Privilege

Privilege As a Benefit Beyond Those Held by Common Citizens

Privilege As a Peculiar Benefit or Advantage Not Common to Others of the Human Race

A Few Meanings of Immunity

The Broader Immunity Definition Is the Best Match

B. Rights, Privileges, and Immunities

C. “Citizens of the United States” Sets an Appropriate Limit on the Constitution’s Abridgment of State Power

II. PRIVILEGES OR IMMUNITIES CLAUSE CASE LAW

A. Slaughter-House Shuts One Door for Incorporating the Bill of Rights

B. The Privileges or Immunities Clause’s Post-Slaughter-House Champions

Justice Black’s “Eminently Reasonable” Method of Incorporating the Bill of Rights Against the States

The Post-McDonald Future of the Privileges or Immunities Clause

III. STARE DECISIS FACTORS POINT TO OVERRULING SLAUGHTER-HOUSE

A. The Nature of the Slaughter-House Majority’s Error

B. The Quality of the Slaughter-House Majority’s Reasoning

A Bald, Results-Based Conclusion

An Absurd Reading That Ignores Text and Legislative History

C. The Workability of the Rules Imposed on the Country

D. The Disruptive Effect on Other Areas of Law

E. Developments Since the Case Was Decided

F. The Absence of Concrete Reliance

IV. SUBSTANTIVE DUE PROCESS MUST END

A. Substantive Due Process Fails to Justify Itself with Reason and Impedes a Harmonious Fourteenth Amendment

B. Substantive Due Process Shortchanges the Ninth Amendment

V. UNENUMERATED RIGHTS: THE ELEPHANT IN THE ROOM

A. Justices Across the Spectrum Want to Protect Unenumerated Rights

B. The Ninth Amendment Is the Best Means to Protect Unenumerated Rights

C. Finding the Right Test for Identifying Protected Unenumerated Rights

The Ink Blot Approach: Disregarding the Ninth Amendment

The Presumption of Liberty Approach: Ninth Amendment Maximalism

Glucksberg’s Goldilocks Test

VI. THE FRAMEWORK APPLIED

A. The Framework for Enumerated Rights

PI + 9 Applied to a Hypothetical About an Enumerated Right

PI + 9 Applied to a Hypothetical About an Unenumerated Right

VII. ADVANTAGES OF THE PI + 9 FRAMEWORK

A. Putting Individual Rights on Stronger Footing

B. Efficiency, Clarity, and Respect for the People’s Amendments

C. Development of Ninth Amendment Jurisprudence

CONCLUSION

99 S. Cal. L. Rev. 359

INTRODUCTION

I. HISTORY AND BACKGROUND: THE RAPID EXPANSION OF “PUBLIC USE”

II. THE BRINKMANN CASE

A. The Impossible Inquiry That Is (Actually) Possible

B. The Brinkmann Majority’s Disregard of Their Own Precedent, Goldstein v. Pataki

Significance of Objective Evidence

Possibility of Closer Objective Scrutiny

Pretextual Taking: A Claim of Dubious Jurisprudential Pedigree?

C. The Possibly Fatal Mistake of Kelo Misinterpretation

An Unwarranted Inference Drawn by the Kelo Majority

Two Ways of Interpretation: Examining New England Estates LLC v. Town of Branford

III. THE NINTH & SEVENTH CIRCUITS

A. Analysis of the Ninth Circuit

B. The Seventh Circuit & Question of Legislative Deference

IV. WHAT NOW?

A. The Dangers of Rational Basis Review

B. Heightened Review: The Tripartite Burden-Shifting Standard

Direct Versus Indirect Evidence

Beyond a Merely Cognizable Reason for Condemnation

Elevated Risk of Pretext/Bad Faith

C. So What About the Equal Protection Clause?

The Three-Tier Framework

Doctrine of Unconstitutional Animus

D. Brinkmann Implications

CONCLUSION

99 S. Cal. L. Rev. 405

INTRODUCTION

I. THE ARRIVAL OF KIDFLUENCERS

A. A Brief History of Stage Mothers

B. Reality Television Bridges the Gap from Film and Television to the Internet

II. REGULATING THE LABOR OF KIDFLUENCERS

A. Existing Labor Regulations for Child Entertainers

1. Federal Measures for Child Workers: The Fair Labor Standards Act

2. SAG-AFTRA, States’ Approaches & the Coogan Law

3. When Does the Home Become a Set?

B. New Efforts: Expanding Child Labor Regulations to Cover Kidfluencers

Artificial Intelligence’s Rise to Prominence: The “AI Boom”²⁷