Posts – Southern California Law Review

Selling Cezanne: Addressing Legal Gaps in Museum Deaccessioning

May 2026May 2026Angela Lee*

Deaccessioning cases in the United States indicate that aside from strictly worded donor restrictions, museum boards have significant legal freedom over the objects in their collections. There are no federal statutes to regulate museum governance, and New York is the only state that has codified museum collection-management practices. The only limitations come from ethical guidelines and industry pressure. By examining the governance structure of museums, the fiduciary duties of nonprofit boards, and controversial deaccessioning cases in the United States, as well as comparing these structures with policies in place in the United Kingdom, this Note proposes that museums in the United States would benefit from implementing regulations to ease the tension of deaccessions. Instituting an independent reviewing committee with academics and industry professionals, a charity commission, and legislation for general low-value deaccessions would alleviate the pressure on state attorneys general, museum boards, local communities, and judges.

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Between Juveniles and Adults: Commonwealth v. Mattis and its Role in Redefining Legal Standards for Emerging Adults

May 2026May 2026Isabella Flaherty*

The Massachusetts Supreme Judicial Court’s 2024 decision in Commonwealth v. Mattis marked the first time any state has categorically banned life without parole beyond the juvenile context, applying that ban to individuals aged eighteen to twenty. In doing so, the court recognized that these individuals—known as “emerging adults”—share key developmental traits with juveniles, including heightened impulsivity, greater susceptibility to peer influence, and a diminished capacity to assess long-term consequences. These developmental differences make emerging adults more similar to juveniles than to fully mature adults, undermining the justification for life without parole—the harshest punishment available short of the death penalty.

This Note argues that the reasoning underlying the Mattis decision does not end at age twenty. Developmental science generally recognizes “emerging adulthood” as extending through age twenty-five, and the characteristics identified in Mattis persist throughout that period, undermining any meaningful distinction at twenty-one. The age-crime curve likewise shows that criminal behavior peaks in late adolescence and early adulthood before declining sharply, while recidivism data further challenges the assumption that individuals who commit serious offenses during this period remain permanently dangerous. Together, this evidence weakens retributive and deterrence-based justifications for life without parole and supports sentencing approaches that preserve the possibility of rehabilitation.

Situating Mattis within a broader national context, this Note argues that the decision reflects—and accelerates—a shift toward development-informed sentencing. Courts, legislatures, and prosecutors increasingly recognize emerging adults as a distinct category warranting individualized and rehabilitative approaches. Building on these developments, this Note contributes to the growing legal discourse on emerging adulthood by showing how Mattis provides a framework for extending categorical protections through age twenty-five, aligning sentencing law with developmental science, principles of proportionality, and modern understandings of culpability.

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The Age of Creativity and Crime

April 2026April 2026Esther K. Hong*

Creativity and crime may seem worlds apart, yet they intersect and overlap in striking ways. While legal scholars have largely ignored the relationship between the two, this Article brings it to the forefront. It examines the legal implications of their connections, particularly for adolescents and emerging adults, who display heightened tendencies toward both.

In many instances, the line that separates creative acts from criminal ones is thin and arbitrary, drawn by the biases of decisionmakers such as police, prosecutors, and school administrators. Creative acts are mischaracterized as criminal ones. Creative expressions are used as evidence of one’s criminality or dangerousness. These mischaracterizations are generally harmful, but they cause particular harm for adolescents and emerging adults, who have developmental traits that increase their associations with crime and creativity, have a developmental need to engage in creativity, and are in a crucial developmental period of growing their creativity. That young people have their creativity criminalized imposes a distinct developmental harm.

These considerations underscore the need to apply an increasingly influential legal framework for young people called the developmental framework. Implementing this framework in a manner that protects and prioritizes young people’s creativity requires changes in the prosecution and punishment of crime, further dismantling of the school-to-prison pipeline, and increased opportunities for creativity. Making such changes will not only enhance young people’s well-being and reduce their risk of becoming entangled in the criminal system, but also pave the way for broader systemic reform for all.

Introduction

adolescents and emerging adults,¹ who display heightened tendencies toward both creativity and crime.²

To begin, creativity is defined by the “two traditional components” of originality and usefulness.³ Even though it is technically a neutral trait—one that “can be applied in many different ways, some of which are benevolent and some of which are unethical and immoral”⁴—it is “universally” presented in a positive light.⁵ The vast majority of scholarship and research about creativity lauds its beneficial effects on individuals, organizations, and society.⁶

It is no wonder then that creativity is so highly desired. The most popular TED Talk of all time—Do Schools Kill Creativity? by Sir Ken Robinson—has more than 79 million views.⁷ In 2023, the World Economic Forum identified “[c]reative thinking” as the top skill that is increasing in importance for the future⁸ and as, currently, the second most essential skill for workers.⁹ Over a decade before in 2010, IBM conducted a global survey of 1,500 CEOs across 33 industries in 60 countries and found that the highest number of respondents identified creativity as the most valuable leadership skill.¹⁰

Creativity spurs new ideas, promotes flexibility, and supports problem-solving and adaptation to new environments.¹¹ Also, while creativity is often associated with the arts, it extends far beyond them. Creativity can be implemented in everyday activities and environments through acts of “little-c” creativity.¹² After all, any thought, action, or work that is original and useful is, by definition, a creative one.¹³ The lucky few are deemed to possess “Big-C” creativity, or eminent creativity, with some receiving this distinction posthumously.¹⁴ Big-C creativity refers to “clear-cut, eminent creative contributions,” and includes works that have won prestigious prizes and have a lasting impact on a field.¹⁵ Unless otherwise specified, this Article uses the term creativity to refer to this positive conception, encompassing both ordinary, everyday expressions of creativity and the more rarefied category of eminent, or Big-C, creativity.

Meanwhile, such descriptions and findings are rarely associated with crime or criminality. Unlike the plethora of sources that praise the positive effects of creativity and offer advice on how to cultivate it,¹⁶ research on crime tends to focus on the opposite—how to reduce crime or how to decrease the likelihood that individuals will commit crimes or recidivate.¹⁷ Crime is often associated with harm to individuals and society at large. One definition of crime provides that it is “the intentional commission of an act usually deemed socially harmful or dangerous and specifically defined, prohibited, and punishable under criminal law.”¹⁸

At first glance, creativity and crime may seem unrelated. By some measures, such as their perceived social value or associations, creativity and crime appear to be polar opposites. However, a deeper examination of the two reveals that they have much more in common than intuition or initial impressions may suggest.

First, at their core, both creativity and crime involve some form of deviance or departure “from the norm.”¹⁹ Deviance that is praised is more likely to be characterized as a creative act, while deviance that is negative is more likely to be characterized as a crime. As one framework explains, creativity involves “constructive” deviance, while crime involves “destructive deviance.”²⁰ However, the line separating positive and constructive deviance from negative and destructive deviance often blurred and shifted over time.²¹ History is replete with examples—such as the theory that the earth is not the center of the universe—that were initially branded as destructive, harmful, and even criminal but were later recast as constructive, creative, and innovative.²² Émile Durkheim, the “father figure of sociology,”²³ also observed the intermingling of the two. He wrote that for moral consciousness “to evolve, individual originality must be allowed to manifest itself. But so that the originality of the idealist who dreams of transcending [their] era may display itself, that of the criminal, which falls short of the age, must also be possible. One does not go without the other.”²⁴ In other words, those who fail to align with the prevailing standards of their time may be celebrated as visionaries or punished as criminals. In this sense, creativity and crime are not rigid opposites but fluid, interdependent forces that together help propel societal change.

The two are also linked by the shared traits of people who have a high tendency to engage in creative or criminal acts, such as those with an increased appetite for risk-taking.²⁵ This overlap is especially pronounced during adolescence and emerging adulthood, a developmental period generally understood to span the ages of ten to twenty-five.²⁶ These individuals are referred to as “young people” throughout this Article.

Specifically, for crime, age is not only a “consistent predictor of crime,”²⁷ but also its “strongest predictor.”²⁸ The age-crime curve, considered a “brute fact” of criminology,²⁹ generally shows that crime begins “in adolescence, increases sharply to a peak in late adolescence or early adulthood, and then plummets toward zero for the rest of the life course.”³⁰ Similarly, young people are highly inclined toward creativity—particularly certain forms called divergent thinking³¹ and conceptual innovation³²—and this developmental period is critical for cultivating creative capacity.³³ Taken together, these age-linked patterns in crime and creativity point to a deeper connection between the two. As explained below, recent findings in developmental and neuroscience research shed light on this connection. When integrated into an emerging legal framework that prioritizes young people’s developmental well-being, these insights call for meaningful reforms in law and policy affecting young people.

First, recent developmental and neuroscience research makes clear that the overlap between creativity and crime among young people is not merely coincidental, but fundamentally developmental. Traits associated with adolescence and emerging adulthood, including increased risk-taking and nonconformity, can motivate both creative and criminal behavior.³⁴ Young people’s maturing prefrontal cortex contributes to these developmental traits that are linked to both behaviors.³⁵ Moreover, this period of flexibility and heightened neuroplasticity is a crucial time for fostering young people’s creativity, which itself is essential to healthy development.³⁶

Second, the developmental foundations of creativity and crime take on added significance when viewed through the lens of the developmental framework, an increasingly influential legal framework that applies to young people.³⁷ This framework provides that laws, regulations, and policies that pertain to young people should be primarily guided by developmental and neuroscience research. Such research advances young people’s well-being while also promoting societal interests such as community well-being.³⁸

While the developmental framework’s most visible impact has been in reshaping legal approaches to young people’s relationship to criminality,³⁹ far less attention has been paid to how the framework should also account for their creativity. This Article argues that creativity should likewise be a core consideration in applying the developmental framework. Implementing a developmental framework that prioritizes young people’s creativity should drive significant changes in areas in which creativity and crime overlap and intersect, including criminal and juvenile delinquency prosecutions, punishment, and education. First, greater efforts are needed to identify and eliminate biases, especially racial and class biases, that shape whether acts are perceived as creative or criminal. Even in cases in which there is a clear divide between creativity and crime, such as violent malum in se crimes,⁴⁰ biases can lead decisionmakers to misconstrue a young person’s creativity as proof of their dangerousness and likelihood of committing a crime. One striking example of this misclassification is the use of rap lyrics in criminal trials as evidence of their criminality or likelihood of having committed a criminal act. Although this practice has persisted for decades, it has recently garnered national attention through several high-profile events. These include the criminal prosecutions of rap artists Young Thug and Gunna.⁴¹ The Protect Black Art movement⁴² and documentaries on this topic, including As We Speak that premiered at the 2024 Sundance Film Festival,⁴³ have spurred legislative efforts to limit the use of rap lyrics as evidence in criminal trials. This practice, along with attempts to either directly criminalize or associate criminality with other classic creative expressions like fashion and street art,⁴⁴ speak to a larger problem of misconstruing creativity for crime or criminality, particularly against young people of color or lower classes. Recognizing, addressing, and removing such racial and class biases is essential.

Additionally, a developmental framework that prioritizes creativity also calls for significant changes in education. While education is critical for creativity, schools are currently not providing sufficient opportunities for it, as evidenced by the “creativity crisis” amongst our young people.⁴⁵ Even more worrisome is the increased reliance on criminal processes and tools to control, monitor, discipline, and punish students, leading many schools to serve as pipelines to prison or model prison-like environments.⁴⁶ Dismantling the school-to-prison pipeline, preventing the mischaracterization of creativity as crimes or disciplinary offenses, and increasing opportunities for creativity will create a better educational environment. It will motivate young people to continue their education, which also reduces the risk that they will become entangled in the criminal system.⁴⁷ Creativity enables young people to engage in positive risk-taking,⁴⁸ thus reducing their urge to engage in negative risk-taking,⁴⁹ such as harmful behavior that is clearly criminal.⁵⁰

This focus on the overlap of creativity and crime in young people is intentional but is not meant to be exclusionary. From the outset, it is very important to recognize this period of adolescence and emerging adulthood as a distinct one. Young people suffer distinct developmental harm when their creativity is criminalized or even discouraged to avoid associations with criminality. As developmental psychologist Laurence Steinberg observed, while change is possible in all people, the period between the ages of ten and twenty-five may very well be the “last significant window of opportunity” or final “real opportunity we have to put individuals on a healthy pathway and to expect our interventions to have substantial and enduring effects.”⁵¹ In other words, these changes can produce profound, long-lasting impacts that extend into the rest of young people’s lives.

However, this focus on young people and the developmental framework does not mean it is exclusionary. Rather, as with other meaningful changes in criminal law that have gained mainstream acceptance or evidence of their effectiveness through their initial implementation for youth,⁵² one of the goals of this discussion is to pave the way for widespread changes. As a practical matter, this very population of adolescents and emerging adults make up the majority of those who commit crimes.⁵³ Accordingly, policies and practices directed at this population can generate broader systemic change if they demonstrate their effectiveness and become widely adopted.

These arguments will be addressed in the following four Parts: Part I introduces the general ties between creativity and crime. It describes the conceptual connections that scholars have observed for centuries. It also highlights the commonalities in people with heightened associations with creativity and crime, focusing on young people. Part II then examines the developmental basis that helps explain young people’s strong connections to the two. This basis invites the application of the increasingly influential developmental framework, a legal framework that calls for developmental research to create, shape, and implement laws, policies, and regulations that affect young people. It contends that the developmental framework should prioritize young people’s creativity as it is both a manifestation of their development and integral to their development. The final two Parts apply this modified developmental framework in areas in which creativity and crime overlap and coexist. Part III focuses on the prosecution and punishment of crime and offenses, and Part IV addresses the educational environment. These normative proposals will better protect and foster young people’s creativity while minimizing their associations with crime and criminality. They will also pave the way for broader systemic reform.

I. The Ties Between Creativity and Crime

Creativity and crime overlap and intersect in meaningful ways. While each concept retains unique features, they also share a significant zone of overlap. This shared space consists of a common core of deviance, an essential role in driving societal progress, and a heightened manifestation in certain people, particularly young people.

A. General Similarities

Creativity and crime are conceptually linked. First, they share a common core of deviance.⁵⁴ “All creativity involves products that deviate from the norm, processes that also involve deviation—both in thought and action . . . .”⁵⁵ Similarly, crime also involves deviance from established societal standards. Crime and deviance are often theorized together and defined in relation to one another.⁵⁶ For example, one definition of crime provides that it is “deviance which violates a law.”⁵⁷ It is then the type and form of deviance—constructive versus destructive;⁵⁸ beneficial versus harmful—that distinguish the two.

If we were to imagine these concepts along a “deviance” spectrum with creativity at one end and crime or criminality at the other, there would be certain acts of deviance for which it is self-evident whether the act is constructive or destructive, creative or criminal. For instance, acts that are classified as malum in se—“inherently immoral, such as murder, arson, or rape”⁵⁹—are universally viewed as harmful, destructive, and criminal. The criminal and destructive nature of these acts persists even when they are accomplished in a “creative” manner, meaning in an original and useful way. Conversely, acts such as music, literature, art, or film generally fall on the creative end of the spectrum.

However, for other acts of deviance that fall in the middle of this spectrum, the distinction becomes less clear and determining whether an act should be labeled primarily as criminal or creative can be ambiguous and left primarily to the discretion of decisionmakers. Moreover, for certain acts, society’s characterization of the type of deviance (criminal or creative) can change drastically over time, reflecting society’s differing judgments.⁶⁰ What was once considered criminal behavior may move closer to or fall squarely within the creative end of the spectrum, reflecting changing historical, cultural, and social views. This is especially evident when considering how both creativity and crime play an important role in societal progress and advancement.

That creativity is necessary for societal innovation and development is uncontroversial. Innovation itself means the “actual implementation and execution of creative ideas.”⁶¹ As creativity scholar Arthur J. Cropley observed, societies around the world and throughout history highly regarded creativity as crucial for societal advancement.⁶² For instance, Chinese Emperor Han Wudi, whose empire lasted until 87 BCE, rewarded “innovative thinkers” with “high rank in the civil service.”⁶³ Similarly, “founders of modern science” like Francis Bacon and René Descartes from the sixteenth and seventeenth century recognized the necessity of “scientific creativity” for societal progress.⁶⁴

A more provocative theory, however, is that crime also promotes societal progress. Yet this theory too dates back centuries. Durkheim observed in the nineteenth century that “crime itself may play a useful part in [the] evolution” of moral consciousness in a society.⁶⁵ “Not only does it imply that the way to necessary changes remains open, but in certain cases it also directly prepares for these changes.”⁶⁶ Durkheim illustrated this point through Socrates, who, living under the applicable Athenian law, was “just[ly]” punished as a criminal for his “independence of thought.”⁶⁷ However, over time, it became clear that Socrates’s “crime” was one of necessary creativity and innovation, proving “useful not only for humanity but for his country” as “[i]t served to prepare a way for a new morality and a new faith” for the Athenians.⁶⁸ Similarly, Galileo Galilei was labeled a criminal in the sixteenth century for publishing and disseminating the theory that the earth was not the center of the universe.⁶⁹ For these acts, he was placed under house arrest for approximately ten years until his death.⁷⁰ Over time, however, the “criminal” characterization of these acts shifted and were later recognized as necessary creative and innovative contributions.

Events from the United States also support the theory that crime prompts societal progress and may later be recognized as innovative acts. The civil rights movement, which propelled the United States toward a more just and equal society, was sparked by acts that were criminalized at the time. In March 1955, a fifteen-year-old teenager named Claudette Colvin refused to give up her bus seat to White passengers. As a result, she was arrested, charged with “assault and battery, disorderly conduct and defying the segregation law,” and confined in an adult jail.⁷¹ While there had been similar incidents of Black individuals refusing to give up their seats before this incident—although it does not appear that Colvin was aware of them—“[w]hat was without precedent, though, is Colvin wanted to get a lawyer and she wanted to fight.”⁷² Yet while she sought to challenge the underlying laws,⁷³ the leaders of the Black community chose to wait for another person who would be less controversial, given Colvin’s “mouthy, emotional and feisty” attitude and her eventual out-of-wedlock pregnancy.⁷⁴ This occurred nine months later when Rosa Parks—who, as secretary of the NAACP, was well aware of Colvin’s act—refused to give up her seat.⁷⁵ That refusal officially initiated the Montgomery bus boycott, a “formative turning point of the twentieth century.”⁷⁶ Colvin, meanwhile, eventually joined a federal lawsuit as one of the four plaintiffs that ended the segregation of buses.⁷⁷

Similarly, on February 1, 1960, four college freshmen from Greensboro, North Carolina—“Ezell Blair, Jr. (now Jibreel Khazan), David Richmond, Franklin McCain and Joseph McNeil”—sat at a Woolworth counter designated for White patrons and attempted to order lunch.⁷⁸ They were denied service, heckled, and harassed, but refused to leave, even when the police arrived.⁷⁹ The store manager eventually closed the store early to make everyone leave, including the “Greensboro Four.”⁸⁰ This highly publicized act inspired sit-ins across the South, with more than fifty students eventually arrested.⁸¹ The student-led activism that swept across the country was pivotal to the civil rights movement.⁸² These acts defied the laws and societal norms of segregation in the 1950s and 1960s.

While these acts were described widely at the time as crimes and disobedience, they are now better understood as creative and innovative acts—acts of originality that created substantial progress in society. These then-deviant acts challenged and helped dismantle the existing racial hierarchies in the United States. Consistent with Durkheim’s observations, they illustrate how creativity and crime coexist and how the characterization of certain acts may themselves morph from one to the other over time. The boundary that separates the two is fragile, movable, and at times, arbitrarily drawn.

Lastly, the ties between creativity and crime also appear in fundamental theories and frameworks about creativity such as the “four primary categories,” or 4Ps, of creativity—person, product, process, and press (environment).⁸³ Creativity scholars David H. Cropley and Arthur J. Cropley slightly revised the 4Ps to illustrate how there is much overlap in people engaging in benevolent forms of creativity, referred to as “creatives,” and malevolent forms of creativity, referred to as “resourceful criminals.” Both groups of people share similar processes, personal properties, personal motivations, and personal feelings.⁸⁴ For example, regarding their “personal properties,” both display “openness”; “flexibility”; “lack of inhibition”; and “non-conformity.”⁸⁵ While the Cropleys acknowledged that meaningful differences exist between creativity and crime,⁸⁶ the two are not so distinct that they repel each other like oil and water. To the contrary, even if their similarities are often overshadowed by the largely positive field of creativity research, the study of their overlap is considered a well-established subfield of creativity.⁸⁷ For example, “malevolent creativity” refers to deliberately creative acts that are intended to benefit the wrongdoers but harm or destroy others, such as terrorism, war, and abuse.⁸⁸ “Creative crimes” are those in which individuals use novel means to “achieve statutorily prohibited goals.”⁸⁹ Also, creativity can facilitate or enhance criminal behavior, such as fraud or deceit.⁹⁰

Various scholars throughout the centuries have recognized the overlap between creativity and crime. They share a common core of deviance, play a necessary role in societal progress, and can shift from one to the other over time. History is replete with acts that were previously criminalized but later recharacterized as essential creative and innovative acts that advanced society. Creativity and crime coexist and overlap in meaningful ways.

B. The Overlap in Young People

Creativity and crime are also connected by the types of people who have a higher tendency to engage in creative acts and criminal acts. The similarities have led researchers to explore potential root causes or shared traits that prompt both types of behavior. For example, Hans J. Eysenck’s arousal theory posits that there is a “common biological origin” for creativity and criminality, claiming that individuals with low arousability have a need to engage in behavior that is “impulsive, risk-taking and sensation-seeking . . . in order to raise their arousal to a comfortable level.”⁹¹ Scholars have also independently observed that young people—adolescents and emerging adults—demonstrate heightened tendencies toward creativity and crime.

First, young people are strongly associated with crime and criminality. They are more likely to commit crimes than any other age group. For centuries, criminologists have recognized a correlation between adolescents and emerging adults, and criminal behavior.⁹² Age—more so than any other factor such as gender, race, or ethnicity—has been identified as the “strongest”⁹³ and most “consistent predictor”⁹⁴ of crime. Crime generally begins in one’s adolescence, “increases sharply to a peak in late adolescence or early adulthood,” and then falls “toward zero” for one’s remaining life.⁹⁵ The height of criminal activity takes place between the ages of sixteen and twenty-four.⁹⁶ This phenomenon is captured by the age-crime curve, which has been described as a “brute fact” of criminology.⁹⁷

These connections between crime and young people have been observed for nearly 200 years across different cultures. In the 1830s, Belgian astrologer, sociologist, and mathematician Adolphe Quetelet was the first to formally document this relationship between youthfulness and crime.⁹⁸ Modern crime statistics in the United States continue to support the persistence of the age-crime curve.⁹⁹ While there are secondary debates about this age-crime correlation, such as its causes¹⁰⁰ and slight variances in the data,¹⁰¹ the connection between youth and criminality is strong and widely accepted.

Young people are also strongly associated with creativity. Adolescents and emerging adults are noticeably adept at engaging in creative acts, particularly those involving divergent thinking and conceptual innovation. Moreover, this period of adolescence and emerging adulthood is crucial for developing creativity.

The age-distribution curve observed in criminal behavior is also present in certain creative fields. Researcher Satoshi Kanazawa found that the age distribution of renowned creative jazz musicians, painters, and authors—whom he referred to as “geniuses”—was very similar to the age-crime curve.¹⁰² Both curves have a similar form—they rapidly rise during adolescence, peak in early adulthood, and then quickly decline by midlife.¹⁰³ The “age–genius” curve, however, peaked later than the age-crime curve, likely due to the fact that the genius curve required “special talent” or responses to “evolutionarily novel stimuli and situations.”¹⁰⁴ This correlation between two sets of data—“age and creativity/crime” and “marriage and creativity/crime”—suggests that creativity and criminality may be driven by the same underlying urge to “gain status and power in order to increase success” in producing offspring.¹⁰⁵

While Kanazawa’s study focused on young men, creativity researchers have found no evidence of gender differences in creativity tests.¹⁰⁶ To the extent that there are observable differences in the real world, they are “due to environmental and interactional factors, such as gender discrimination in education and employment, and require an explanation at the sociocultural rather than the individual level.”¹⁰⁷

Recent research also found that the peak timeframe for conceptual innovation occurs during one’s youth. Economists Bruce A. Weinberg and David W. Galenson found that among Nobel Prize laureates in economics, “the probability of a single best year” for conceptual innovation “peak[ed] at age 24.8.”¹⁰⁸ Conceptual innovators are those who “work deductively, applying abstract principles.”¹⁰⁹ They “ ‘think outside the box,’ challenging conventional wisdom and . . . come up with new ideas suddenly.”¹¹⁰ Meanwhile, “experimental innovators,” or those who “work inductively, accumulating knowledge from experience,” tended to be those in their mid-fifties.¹¹¹

Another study—the first to use an algorithmic approach to assess participants’ ability to “produce configurations of high algorithmic randomness”—found that those who had the highest ability to do so peaked at age twenty-five.¹¹² Researchers here utilized a “continuous age range” and tested 3,400 individuals from ages 4 to 91.¹¹³ This skill in creating and recognizing randomness is linked to higher creativity since creativity itself depends on “develop[ing] new approaches and test[ing] different outcomes.”¹¹⁴

Moreover, while some creativity researchers maintain that creativity is a skill that can be developed throughout one’s lifespan, young people continue to show distinct ties to creativity. In addition to their strength in conceptual innovation and their ability to make random connections, they are also more prone to divergent thinking, defined as the “ability to generate a variety of associations to a word or solutions to a problem.”¹¹⁵ Divergent thinking is also viewed as a more reliable “measure[] of creative behavior.”¹¹⁶ Studies show a notable decline in divergent thinking starting in one’s thirties.¹¹⁷ Others identify this time period, particularly “[m]id-to late adolescence (15–20 years) and early adulthood (20–30 years),” as an “important time” for developing divergent thinking skills.¹¹⁸ In general, this “period of increased potential for flexible thinking”¹¹⁹ makes it an ideal period to foster creativity. The “interests, preferences, and leisure activities” that young people engage in during their childhood or adolescence are strong predictors of “later creative productivity.”¹²⁰

Furthermore, young people are more likely than other age groups to view themselves as creative. A recent survey of all generations found that those in the “Gen Z” generation (aged thirteen to twenty-three years) were the most likely to “consider themselves creative.”¹²¹ More than half of those in that generation, or 56% of respondents, saw themselves as creative.¹²² In another study, researchers observed a growth in creative self-efficacy and creative personal identity for people during late adolescence and early adulthood, and a decline in older adults.¹²³ This self-perception regarding one’s ability to be creative is important because “creative self-efficacy [has] well-established links to creativity.”¹²⁴

Also, young people’s creativity is apparent in the real world. Stories permeate our culture of Big-C creatives who, during their adolescence or emerging adulthood, changed trajectories in the arts, technology, or daily life. For example, while deejaying his first block party in the Bronx, sixteen-year-old DJ Kool Herc (Clive Campbell) introduced a style of music that many now recognize as the birth of hip-hop.¹²⁵ Beyoncé, Rihanna, and Taylor Swift each signed their first recording contracts at age fifteen.¹²⁶ Major tech companies like Facebook, Tumblr, and Bumble were all founded by nineteen-year-olds; Snapchat and Twitter were created by those in their early twenties.¹²⁷ At twenty-one years of age, Steve Jobs and Steve Wozniak co-founded Apple.¹²⁸ Larry Page and Sergey Brin were twenty-five when they created Google.¹²⁹ Even Galileo’s early scientific discoveries, such as the law of the pendulum, originated from his observations of a swinging lamp at a cathedral when he was just nineteen years old.¹³⁰

In summary, researchers have identified young people’s strong associations with creativity through an age-creativity curve, as well as an adeptness at conceptual innovation and divergent thinking. They have also identified this period of adolescence and emerging adulthood as a critical one for developing one’s creativity. Real-life examples of young people’s Big-C creative acts, as well as their elevated self-assessment of their creativity, provide further evidence of these strong associations. These ties are consistent with the long-established associations between young people and crime.

As the next Part explains, these heightened connections are not merely coincidental. Rather, they are largely developmental. Recognizing the underlying developmental basis for young people’s tendencies toward creativity and crime is significant because it invites the application of the developmental framework, an increasingly influential legal framework that prioritizes the development of young people in laws, policies, and regulations that affect them.

II. The Relevance of the Developmental Framework

The heightened associations between youthfulness and crime, and youthfulness and creativity, do not appear to be mere coincidences or random occurrences. Instead, recent research on young people’s developmental traits and brain development shows that this phenomenon is largely developmental. That developmental and neuroscience research explains the shared basis for creativity and crime in young people is itself noteworthy. However, this understanding takes on even greater significance in the present age as the growing influence of the developmental framework encourages

the incorporation of such findings into laws, regulations, and policies that impact young people.

This Part begins by explaining the developmental basis for young people’s strong associations with creativity and crime. It then explains how creativity is not only an expression of their development but also necessary for their healthy development. It then concludes by explaining the developmental framework, detailing both its origins and evolution, and arguing that creativity should be prioritized in this framework as it is vital for young people’s developmental well-being.

A. Developmental Basis for Creativity and Crime

The idea that creativity and crime may have a shared origin is not entirely new.¹³¹ However, recent research sheds light on why young people in particular have stronger inclinations toward creativity and crime. Adolescents and emerging adults share a common developmental basis for their heightened connections to criminal and creative behavior. This consists of young people’s general developmental traits, including their brain development.

First, the stages of adolescence and emerging adulthood are marked by traits that are linked to both criminal and creative behavior, including increased risk-taking as well as nonconforming behavior, especially toward authority figures.¹³² Adolescents generally have “heightened sensation seeking and still-maturing impulse control, as well as a greater willingness to take risks.”¹³³ This is not limited to just American adolescents but applies to adolescents worldwide. Steinberg—whose research played a pivotal role in the Supreme Court’s landmark cases that ushered in the developmental framework for young people¹³⁴—conducted a cross-national study of adolescents, including in the United States, “China, Colombia, Cyprus, India, Italy, Jordan, Kenya, the Philippines, Sweden, and Thailand.”¹³⁵ Steinberg found that all adolescents engaged in risky behavior and were developing their impulse control.¹³⁶ However, the specific forms of risk-taking varied as “different countries [gave] young people differing levels of opportunity to try risky behaviors.”¹³⁷ For instance, in Jordan, where access to alcohol is highly restricted, adolescent-drinking rates remained low, but other risky behavior that was more accessible, like smoking, rose sharply during adolescence.¹³⁸ These findings suggest that while risky behavior may manifest in various ways, “the underlying inclinations that lead adolescents to take risks appear to be universal.”¹³⁹

Emerging adults are also more likely to engage in risky, nonconforming behavior. Until around age twenty-five, emerging adults are “still developing the capacity to rein in their impulses, emotions, and susceptibility to peers, which explains why so many risky behaviors—like crime, binge drinking, reckless driving, and unsafe sex—peak during this stage, and why so much of this risky behavior occurs in groups,”¹⁴⁰ as they remain inclined to peer pressure.¹⁴¹ The similarities between adolescence and emerging adulthood are so strong that Steinberg labeled the entire age range from ages ten to twenty-five as adolescence,¹⁴² with the period from nineteen to twenty-five referred to as “late adolescence and the transition to adulthood” or “young adulthood.”¹⁴³ Many other scholars refer to the stage of eighteen to twenty-five years old as emerging adulthood.¹⁴⁴

These developmental traits of heightened risk-taking and nonconforming behavior against authority contribute to both crime and creativity. When it comes to crime, researchers have observed that both adolescents and emerging adults are more likely to commit criminal acts due to their developmental traits, such as risk-taking and nonconformity.¹⁴⁵ Similarly, creativity also “involves taking chances and risks.”¹⁴⁶ In essence, “[r]isk taking is a distinguishing factor of creative individuals—they are not afraid of the unknown—in fact it is the unknown that arouses their curiosity.”¹⁴⁷ Risk-taking and creativity “share a common domain of factors

that affect them,”¹⁴⁸ including the traits of “open-minded[ness],” “curious[ity],” “courage,” “out-of-box thinking,” “attract[ion] to complexity,” and “non-conforming behavior.”¹⁴⁹

Second, young people’s brain development also helps to explain their inclinations toward creativity and crime. Neuroscience research shows that young people’s ongoing brain growth plays a critical role in shaping their developmental traits described above.¹⁵⁰ The prefrontal cortex, responsible for various executive functions like self-regulation and self-control,¹⁵¹ continues to develop until around age twenty-five.¹⁵²

Scholars and courts have explicitly recognized the underdeveloped prefrontal cortex as a reason why adolescents and emerging adults are more prone to criminal behavior than other age groups,¹⁵³ thus making them less culpable for crimes and having a greater capacity for change.¹⁵⁴

Similarly, foundational research in creativity and neuroscience also reveals that creativity is associated with the suppression of the brain’s dorsolateral prefrontal cortex region,¹⁵⁵ which is responsible for “planning, inhibition, and self-censorship.”¹⁵⁶ While studies also show that brain activity for creativity involves multiple regions of the brain, this specific area in the prefrontal cortex continues to be associated with creative activity and thought.¹⁵⁷ Suppression of this region appears to lead to greater creative activity.¹⁵⁸ It is therefore unsurprising that adolescence and emerging adulthood—when the prefrontal cortex is still not fully developed—is such a critical period for creativity.

In sum, creativity and criminality in young people stem from their developmental traits, including their ongoing brain development. However, of the two, creativity is also identified as essential for healthy development.

B. Young People’s Developmental Need for Creativity

While creativity and criminality stem from similar developmental traits and brain development, creativity is essential for healthy development in adolescents and emerging adults. The need to prioritize creativity is even more urgent in light of what scholars have called a “creativity crisis” among youth in the United States.¹⁵⁹ Kyung Hee Kim found that young people’s creative thinking skills have “significantly decreased” since the 1990s.¹⁶⁰ She analyzed over 270,000 results from the Torrance Test of Creative Thinking—the “most commonly used creativity test”¹⁶¹—that kindergarteners to twelfth graders took from 1966 to 2008.¹⁶² Her research revealed that there was a “steady and persistent” decline in creative thinking scores in the most recent two decades covered by her study (1990 to 2008).¹⁶³ Her 2021 study similarly continued to find declines in indicators for creativity in students.¹⁶⁴

This stage of adolescence and emerging adulthood is a critical time for creativity, as creativity is an essential factor in development and identity formation. For young people, the “rapid neurodevelopmental changes, including the development of more advanced levels of objective, rational, hypothetical, abstract, and metacognitive thinking,” make this period “a critical period for creative identity development.”¹⁶⁵ Identity formation is fundamental.¹⁶⁶ As biologist and naturalist Edward O. Wilson wrote, creativity is an “innate quest for originality” that is “the unique and defining trait of our species; and its ultimate goal, self-understanding.”¹⁶⁷ During this period, young people are “susceptible to social, emotional, and relational experiences” that “can help support or potentially suppress creative identity development.”¹⁶⁸ Young people’s neuroplasticity also encourages their creativity.¹⁶⁹

Moreover, creativity supports problem-solving, adaptability, and resilience, all essential traits for young people’s development.¹⁷⁰ Creativity enables young people to “approach problems insightfully” and to maintain a positive outlook on life even amidst adversity.¹⁷¹ It encourages one to be flexible in confronting changes and opportunities.¹⁷² It enhances resilience, which is defined as “the process of, capacity for, or outcome of successful adaptation despite challenging or threatening circumstances.”¹⁷³ Resilience gives young people the “ability to bounce back from risks or failures and to adapt to dynamics and success.”¹⁷⁴ One reason that creativity and resilience are linked is that creative acts “provide a ‘safe haven,’ ” especially in times of hardship and stress.¹⁷⁵ For example, one study showed a strong correlation between unhoused youths who attended a drop-in art center and their increased resilience.¹⁷⁶

Another study underscored that the interdependent relationship between resilience and creativity is also apparent in group settings. An experiment involving undergraduate students found that a group’s resilience is “significantly correlated” with the group’s creativity.¹⁷⁷ Resilience positively increases creativity because resilience positively influences two mediating variables: a group’s belief in their ability to produce creative outcomes (i.e., creative efficacy) and trust amongst group members.¹⁷⁸ This finding is also significant because young people are highly influenced by peer pressure,¹⁷⁹ and creativity can serve as a constructive form of peer influence.

Creativity also enhances enjoyment and overall well-being for young people. Creative activities often induce “flow,” or an “exhilarating, pleasurable moment of complete absorption.”¹⁸⁰ Engaging in creative pursuits boosts self-esteem.¹⁸¹ These effects are important for the well-being of young people.

In summary, creativity is not just an outward expression of young people’s development—it also shapes it. By facilitating identity formation, problem-solving, resilience, self-esteem, and enjoyment, creativity plays a critical role in their overall well-being. This developmental basis for young people’s heightened connections to creativity and crime underscores the need for the developmental framework to recognize and prioritize creativity as a key developmental goal.

C. The Developmental Framework

The developmental framework provides that developmental and neuroscience research related to young people should guide the creation, interpretation, and application of laws, regulations, and policies that affect them. While the state has long accounted for differences in the age and maturity of young people, this modern iteration is distinct because rather than relying on “simplistic views of childhood,”¹⁸² state actors are now increasingly relying on a much more reliable “body of psychological and biological research on child and adolescent development” and emerging adulthood development, as well as evidence on the “effectiveness of these policies.”¹⁸³ This framework has grown in scope and significance since its creation in the early 2000s.

This modern developmental framework emerged in the early 2000s when the Supreme Court issued a series of four landmark decisions under the Eighth Amendment that incorporated developmental research to interpret the constitutional rights of youth under eighteen in sentencing.¹⁸⁴ Each case produced a noteworthy change, such as a prohibition on the death penalty and limitations on life imprisonment without parole sentences for youths who committed crimes before the age of eighteen.¹⁸⁵ However, collectively, these cases are viewed as revolutionary,¹⁸⁶ creating a seismic shift in the legal landscape for youth under eighteen, and more recently, for emerging adults aged eighteen to twenty-five.

The developmental framework’s most significant impact has been on juvenile and criminal laws and policies for those under eighteen.¹⁸⁷ However, the framework has since expanded in two major ways. First, developmental and neuroscience research is shaping areas of the law beyond juvenile and criminal law for youth under eighteen. Second, this research is increasingly impacting emerging adults, or those aged eighteen to twenty-five. These two expansions will be described in turn.

The first expansion of the developmental framework has been the growing incorporation of developmental and neuroscience research beyond just the juvenile and criminal systems. Emily Buss articulated a broad theory of “developmental jurisprudence,” which calls for the law to be a “developmental agent” that “shapes how children grow up.”¹⁸⁸ Buss stated that the “law should aim to minimize the developmental harm it imposes and maximize the developmental benefit it provides.”¹⁸⁹

Consistent and “compatible” with Buss’s theory, Clare Huntington and Elizabeth Scott created the “Child Wellbeing framework”¹⁹⁰ to guide all regulations and policies affecting youth under eighteen to meet the primary goal of “promot[ing] child wellbeing.”¹⁹¹ The Child Wellbeing framework consists of three key principles, the first of which is the primacy of the developmental framework, or the “incorporation of developmental knowledge,”¹⁹² which includes “psychological and biological research on child and adolescent development, as well as growing evidence about the effectiveness of policy interventions.”¹⁹³ This Child Wellbeing framework applies broadly to laws and policies that affect youth under eighteen, “including systems of state intervention, parental rights, and children’s rights, as well as, to a much lesser degree, policies of state support for families.”¹⁹⁴ Healthcare and education policies have also been shaped by such research.¹⁹⁵ Further evidence of its influence is seen in the inaugural Restatement of Children and the Law, which is primarily guided by the developmentally centered Child Wellbeing framework.¹⁹⁶ This again underscores the broad and far-reaching impact that the developmental framework has—and will continue to have—on laws, regulations, and policies affecting youth.

The second expansion of the developmental framework has been its application to emerging adults.¹⁹⁷ Increasingly, researchers and advocates are emphasizing the developmental similarities between adolescents and emerging adults, including their shared “risk-taking, impulsivity, tendency to be overly motivated by reward-seeking behavior, and high susceptibility to peer influence.”¹⁹⁸ Like adolescents, emerging adults’ prefrontal cortexes are still developing.¹⁹⁹

These findings have already led some lawmakers to propose or enact laws and policies that account for these developmental differences.²⁰⁰ Advocates recognize that the developmental framework is pivotal for the “burgeoning field of Emerging Adult Justice.”²⁰¹ If the legal landscape for emerging adults were to follow the progression for adolescents—since they share similar developmental traits—then the developmental framework is poised to have an even greater influence on the laws, policies, and regulations that impact emerging adults in the criminal system and beyond.

Thus, at this pivotal inflection point, as the developmental framework expands its influence, creativity should become a central focus and priority given its importance to young people’s development. The following Parts explore how prioritizing young people’s creativity should reshape policies and practices in areas in which creativity and crime overlap and intersect—namely, in the prosecution and punishment of crime, as well as in education. These normative proposals also further illustrate the close ties between creativity and crime.

III. The Prosecution and Punishment of Crime

Implementing a developmental framework that prioritizes young people’s creativity demands meaningful changes in the prosecution and punishment of crime for young people. These proposals not only center and protect young people’s creativity to foster their healthy development, but they also provide further evidence of the deep connections between creativity and crime.

Prosecuting Crime

If, as Durkheim posits, creativity and crime coexist,²⁰² then the line dividing creative and criminal acts may not always be clear-cut. Durkheim himself recognized this ambiguity when he intertwined the creative person with the criminal. He wrote, “[S]o that the originality of the idealist who dreams of transcending his era may display itself, that of the criminal, which falls short of the age, must also be possible. One does not go without the other.”²⁰³ Durkheim’s discussion of Socrates further underscores the blurriness between the two and how one can be misconstrued for the other. Although Socrates represented an innovative way of thinking and a new philosophy that Durkheim clearly valued since he said that it prepared the Athenians for the future,²⁰⁴ he also observed that in the society and time Socrates lived in, “his condemnation” as a criminal “was entirely just” under the prevailing laws.²⁰⁵

This blurring between creativity and crime is not merely confined to the past. Creative acts continue to be misconstrued as crimes or as evidence of one’s criminality, particularly for young people of color. While criminalizing creativity is harmful in general, it is especially damaging for young people because it harms their development in multiple ways. It unjustly labels them as criminal or dangerous; increases their exposure to arrest, prosecution, and punishment for crimes or offenses; and suppresses their creativity.

To be clear, not all crimes and offenses committed by young people should be reframed as acts of creativity. But recognizing the substantial overlap between the two and working to reduce their mischaracterization is crucial. As the deviance spectrum introduced in Part I illustrates, this problem is most acute in the middle of the spectrum, in which the distinction between creative and criminal behavior is less clear. The concern, however, also extends to clearly criminal conduct at the end of the spectrum, in which a young person’s creative acts may be treated as evidence of general criminality or even as proof that the person committed an alleged, clearly criminal offense. When young people engage in nonconforming behavior or challenge societal norms and expectations, discretion and biases—particularly those based on race and class—impact whether their actions are interpreted as creative or criminal, or as indicative of heightened criminality. Confronting and eliminating these biases, as well as implementing innovative solutions that directly limit the criminalization of creativity, are all essential.

The Significance of Discretion and Bias

Discretion and bias can tip the scales between creativity and crime. Even with established frameworks in place to help distinguish between criminal and creative acts, discretion and bias can drive the criminalization of creative expressions and the mislabeling of creativity as evidence of criminality, especially for young people of color.

Most people can agree that certain actions—no matter how creatively executed—should be considered crimes. For example, Paul Butler’s reliance on traditional categorizations and grading of actions (albeit in a different context of jury nullification²⁰⁶), such as malum in se versus malum prohibitum,²⁰⁷ or violent versus nonviolent offenses, provides an initial way for separating creative acts from criminal ones, even though these categories are far from perfect.²⁰⁸ As Butler recognizes, the most serious offenses, or “violent malum in se crimes like murder, rape, and assault,” warrant no allowance from their criminalization.²⁰⁹ In this context, this means that violent malum in se actions should be viewed as crimes, regardless of whether the acts were committed in an original or creative way. Such acts reside at the end of the deviance spectrum reserved for clearly criminal conduct. Meanwhile, nonviolent malum in se actions, such as perjury,²¹⁰ as well as nonviolent or victimless malum prohibitum actions,²¹¹ warrant closer examination. The latter category demands the most scrutiny, as questions about their criminalization are most vexing and difficult to resolve.

Yet these categorizations are only a starting point. This is because the determination of what is creative or criminal, as well as the seriousness of the crime, frequently rests on the discretion of those within the juvenile and criminal systems, such as police officers, prosecutors, and juries charged with fact-finding. Law enforcement exercises “tremendous discretion” over which “laws to enforce and against whom.”²¹² Prosecutors, too, wield “vast discretion” to decide “whether and when to charge a person with a crime.”²¹³ Discretion is at its peak in the context of disorderly conduct crimes²¹⁴ “[w]hen broadly worded statutes intersect with minor misconduct.”²¹⁵ Biases, particularly “racial and economic biases,” infuse the enforcement of such laws,²¹⁶ and there is much more wiggle room for such conduct to be characterized as either criminal or creative.

Bias and discretion do not merely shape how acts are categorized in the middle of the deviance spectrum, they also skew and distort perceptions of creative behavior. For young people, especially young people of color and those from lower socioeconomic classes, creative expression risks being interpreted as evidence of their criminality and dangerousness, making it appear more likely that they are guilty of clearly criminal conduct. Recognizing the effects of bias and discretion is an important first step toward eliminating them. The next Section explains how bias and discretion influence how one determines individuals’ associations with criminality or creativity, and the following Section examines how bias and discretion affect whether a given act is interpreted as creative or criminal.

Associations with Criminality or Creativity

In the late 1990s, the meteoric rise of McKinley “Mac” Phipps Jr.’s rap career abruptly ended after a jury found him responsible for the fatal shooting of a fan during his concert in Louisiana.²¹⁷ At just 22,²¹⁸ Phipps was charged with first-degree murder, and eventually convicted of manslaughter by a 10-2 jury vote.²¹⁹ His conviction, widely viewed as a wrongful conviction,²²⁰ was controversial for the heavy use of Phipps’s own rap lyrics during his criminal trial. Prosecutors cherry-picked lyrics from his songs, took them out of context, and strung together lyrics from different songs to portray him “as the brutal character in his songs.”²²¹ The jury foreman later shared that Phipps’s music and rap lyrics helped secure the guilty verdict.²²² He stated that “rap got his mind all messed up” and Phipps was “living a life that he thought he was a gangsta,”²²³ thus making it more likely that Phipps was the kind of person who would “shoot somebody in a public place on the dance floor.”²²⁴ Phipps served 21 years of his 30-year sentence before the governor of Louisiana granted him clemency in 2021.²²⁵

Phipps’s case is sadly not an anomaly. Scholars studying traditional expressions of creativity—music, fashion, and art—have found that biases and stereotypes distort the creativity of young people of color and lower socioeconomic classes as proof of their criminality and dangerousness.

As a prime example, rap music has been prominently used to establish a narrative of criminality against young men of color. They have been introduced in criminal cases to establish motive, intent, or proof of confessions.²²⁶ As Andrea Dennis and Erik Nelson observed from their study of cases from 2009 to 2019 in which rap lyrics were introduced as evidence, the defendant was “almost always a young man of color.”²²⁷ More specifically, nearly 95% of the defendants in the approximately 500 cases who had rap lyrics used in their criminal cases were Black or Latino young men.²²⁸ Dennis and Nelson described this association between rap music and crime as a modern iteration of a historical practice, in which “[B]lack art and expression” were often viewed “as a threat” and “criminally regulated.”²²⁹ This includes “slave drumming and songs[,] . . . Jim Crow–era ballads,” and creative acts expressed “in cabarets and jook joints, and during the civil rights and [B]lack nationalist eras.”²³⁰ The criminal system was used to “control [B]lack speech and creative endeavors.”²³¹ They also found that “[n]o other fictionalized form, musical or otherwise,” faced similar treatment in court.²³² This includes country music, which “has many of the same themes” as rap music.²³³

That juries and prosecutors may associate rap music or music from minority artists with criminality has also been found in research experiments. Carrie Fried conducted a series of experiments to test whether the label of rap music or the race of the artist produced different reactions.²³⁴ She took lyrics from a folk song about a young man who “hunts down and kills a police officer”²³⁵ and found that a majority of the respondents found the folk song to be more offensive than rapper Ice T’s “Cop Killer.”²³⁶ She then presented these folk lyrics to three groups and identified the lyrics as either folk, rap, or country.²³⁷ Those who were told that the lyrics were from a rap song reacted more negatively, including finding the lyrics to be more offensive, more of a threat to society, and more in need of regulation.²³⁸ In a subsequent experiment, she presented the same folk lyrics and, without identifying the genre of music, presented one group with a picture of a Black singer and another group with a picture of a White singer.²³⁹ Those who were told that the artist was Black had a stronger negative reaction, such as finding it more offensive, more of a threat to society, and more in need of regulation.²⁴⁰ Fried observed that “[t]he exact same lyrical passage, which is acceptable as a country song or when associated with a White artist, becomes a dangerous, offensive song in need of government regulation when it is a rap song or associated with a Black artist.”²⁴¹

Biases have also led to fashion being associated with criminality, especially against young people from marginalized backgrounds. When young people dressed in ways that departed from what was expected, their fashion choices were interpreted as evidence of their criminality. Zoot suits are an example from the past, while in modern times, streetwear such as hoodies and sagging pants has been directly criminalized or presented as proof of criminality and dangerousness.

The iconic zoot suits of the 1930s and 1940s departed from the traditional suit with their “high-waisted pants with baggy, pegged legs and a long coat with wide lapels”²⁴² that exaggerated one’s shoulders, torsos, and limbs.²⁴³ They originated in Harlem in the 1930s and were initially worn by African American young men.²⁴⁴ While people of various cultures and class eventually adopted the style,²⁴⁵ zoot suits were most commonly associated with the “youth subcultures” of Mexican Americans and African Americans.²⁴⁶ Young people had various motivations for wearing zoot suits, ranging from pure style to activism.²⁴⁷ However, as historian and professor Kathy Peiss documented, the zoot suit eventually became associated with criminals and gang members during the war, with some people seeing the suit as symbolizing dangerousness.²⁴⁸ The narrative took on such force that in June 1943, a group of roughly 50 Navy servicemen and other civilians looked for, attacked, and stripped those wearing zoot suits, particularly Mexican American youth.²⁴⁹ The Zoot Suits Riots in Los Angeles lasted for 5 days and, in a bewildering result, led to the arrest of approximately 600 Mexican American young men, far outnumbering the arrests of the servicemen or people who initiated the riots.²⁵⁰ While efforts to pass an ordinance that banned the zoot suit did not succeed in the Los Angeles city council as widely believed, public officials in general discouraged their wear.²⁵¹ The zoot suit became “the exception to the government’s policy of shoring up fashion and style” during the war.²⁵² Peiss holds the state responsible for the criminal and unpatriotic narratives associated with the suit. She explained, “[I]t was the police and governmental authorities that created the political meaning of the zoot suit, as they sought a threatening symbol to describe and encapsulate an array of behaviors and demeanors that to them made little sense.”²⁵³

The modern iteration of this phenomenon involves streetwear. For many Black and Brown youth, their nonconforming, creative wear is interpreted as a criminal marker. Sagging pants have been associated with crime for decades²⁵⁴ and, in some jurisdictions, is actually a crime to wear.²⁵⁵ Hoodies, too, have signaled criminality. As criminologist Richard Moran observed, “Over the last 25 years, the hoodie has been associated with street crime.”²⁵⁶ It was the “uniform of MCs, stickup kids, graffiti artists, and b-boys” and a “staple of hip-hop culture.”²⁵⁷ The adoption of hoodies amongst “skateboard kids” and “punk-rockers” further made it a “symbol of disruption.”²⁵⁸ This association between hoodies and criminality received national attention with the killing of Trayvon Martin. George Zimmerman called 911 on Martin, describing him as a “suspicious guy” who was wearing a “dark hoodie, a gray hoodie.”²⁵⁹ A conservative commentator opined that the hoodie could not be rehabilitated and conveyed “a sinister signal.”²⁶⁰ The commentator advised that parents stop their children from wearing it, except in situations in which it was presumably more expected, such as when it rained or “at a track-and-field event.”²⁶¹ Meanwhile, when start-up founders and techies departed from the typical professional dress code and began wearing hoodies and casual streetwear, their nonconforming fashion choice conveyed a different message—one of creativity and innovation.²⁶² As Margaret O’Mara observed, from early in our country’s history, an innovator’s disheveled dress and appearance signaled their brilliance.²⁶³ It implied that they did not have enough time to care about their clothing.²⁶⁴ While both groups wore similar clothing in a counter-cultural manner, one was associated with criminality, while the other with creativity.

Street art provides yet another example of how opposing messages of criminality or creativity can be shaped by the biases that society has toward those who create the art. As Jessica Silbey wrote, “Street art is a form of artistic expression that has existed throughout human civilizations . . . .”²⁶⁵ Graffiti, which has been associated with young people from marginalized backgrounds, has long been weaponized to create a strong narrative of their criminality. From the 1970s to 1990s, New York City officials used racist stereotypes against Black and Latino young men to implement a criminal response against graffiti that was marked by its “brutality and intolerance.”²⁶⁶ In the 1970s, Mayor Ed Koch took advantage of the growing public sentiment against stereotypical “poor [B]lack and Latino communities” to carry out his war on graffiti, mostly on subway trains.²⁶⁷ Mayor Rudy Giuliani continued the graffiti war in spaces beyond the subway, relying again on narratives about the connections between crime and marginalized youth from poor neighborhoods.²⁶⁸

In contrast, the act of “yarn bombing”—or affixing knitted messages or drawings in public spaces—which also technically violates many criminal statutes that prohibit public vandalism,²⁶⁹ has been presented as a purely creative act. It has been covered in the media with headlines such as Dallas Yarn Bombers Brings Joy to Community²⁷⁰ or ‘Knotty Harts’ Yarn Bombs Spread Anonymous Color, Positivity Throughout Gulf Coast.²⁷¹ One news story described yarn bombing as “[a] crafty kind of graffiti,”²⁷² and while it noted that “[c]ritics of graffiti in general might call it vandalism,” it presented the act as an entirely positive expression of art and creativity.²⁷³ The possibility of arrest or criminal consequences for yarn bombing was made entirely in jest.²⁷⁴ Scholars have observed that yarn bombing is most often carried out by “[W]hite, middle-class women.”²⁷⁵ The “public imagery” is that “yarn bombers” are described “as either mysterious but harmless urban knitters, or friendly-faced nannas.”²⁷⁶

While yarn bombing and graffiti may violate the same vandalism laws, there is an immediate association of yarn bombing with creativity, art, and joy, while, in general, graffiti carries an aura of criminality. And even though differences exist between yarn bombing and graffiti, such as the difficulty in removing the latter or the messages that they display, they do not fully account for the immediate and almost knee-jerk association of one form of vandalism with crime and the other with creativity. To further underscore that graffiti is not inherently criminal, its growing commodification has altered its reception and messaging. The works of certain graffiti artists, such as Banksy and Jean-Michel Basquiat,²⁷⁷ sell for millions. Landlords, developers, brands, and government employees worldwide are increasingly using the counter-cultural message behind graffiti to market and sell their products and properties.²⁷⁸

Biases rooted in race and class against young people affect how their creative endeavors—even traditional ones in music, fashion, and art—are interpreted. For young people of color from lower socioeconomic classes, their creative expressions, such as rap, streetwear, and graffiti, have signaled their dangerousness and criminality. Meanwhile, other forms of music with violent lyrics, street art that invaded public spaces without permission, or similar counter-cultural casual wear relayed creativity. As discussed in the next Section, biases also impact whether nonconforming or unexpected actions are labeled as creative or criminal.

Labeling Acts As Creative or Criminal

Ahmed Mohamed and Kiera Wilmot met for the first time at the White House’s Astronomy Night.²⁷⁹ Though from different states and backgrounds, they shared an unlikely bond: both had been arrested and criminally charged for science experiments.²⁸⁰ Mohamed, a fourteen-year-old Muslim student from Texas, built a homemade clock to impress his high school engineering teacher.²⁸¹ But when the clock beeped in a different classroom, that teacher mistook it for a bomb and the school called the police.²⁸² Mohamed was arrested, charged with making a hoax bomb, and suspended from school.²⁸³ Wilmot, a sixteen-year-old Black honors student from Florida, had a similar experience. After her science project unexpectedly exploded in class, she was arrested, charged with two felonies, and expelled from school.²⁸⁴

For both teens, their stories went viral and led to their criminal charges eventually being dropped. Their arrests, criminal charges, and school disciplinary actions were widely condemned as acts of Islamophobia and anti-Muslim bigotry in Mohamed’s case,²⁸⁵ and as racism in Wilmot’s case.²⁸⁶ By recognizing and addressing the racial and religious biases that had led school officials and police officers to view both acts as crimes, the teenagers’ actions were later described in traditional and social media as acts of creativity and innovation that had been inappropriately criminalized.²⁸⁷

While Mohamed’s and Wilmot’s stories received national attention, similar stories have fallen under the radar, especially when the exercise of discretion resulted in a favorable reaction that was not newsworthy. After Mohamed’s and Wilmot’s stories went viral, many shared how they or their children engaged in similar acts that could have been criminalized but were instead rewarded for their creativity or merely received light reprimands.²⁸⁸ In Wilmot’s case, numerous “scientists and science fans” on Twitter shared how they also had blown things up, but were “congratulated on their curiosity” or received a “slap[] on the wrist.”²⁸⁹

This double standard has been observed by Kristin Henning who spent decades defending indigent children. She recounted the story of a thirteen-year-old Black student who, inspired by a movie, made a fake Molotov cocktail at home.²⁹⁰ While it was not functional—as the household materials would never have caught on fire—when the teen mistakenly took it to school after leaving it in his backpack, he was arrested, charged with multiple offenses, detained, suspended from school and extracurriculars, and required to meet with a probation officer, attend anger management classes, and undergo urine testing for drugs.²⁹¹ While his case was eventually dismissed, he endured months of school and court officials treating him as a criminal.²⁹²

Initially, Henning attributed the teen’s harsh treatment to the increased sensitivity to violence in schools.²⁹³ But her perspective changed after she learned of a nearly identical case involving a White student from another district. There, the student’s mother shared that her son’s consequence was a positive one: enrollment in the chemistry class to further explore his interest in the sciences.²⁹⁴ Henning ultimately described her client’s experience as a classic manifestation of the criminalization of Black youth.²⁹⁵ School administrators, police officers, the prosecutor, and the judge all viewed the Black teen’s act as dangerous, harmful, and criminal, when they could have viewed it as Henning described it—as an act in which the youth “was just being creative.”²⁹⁶ This experience is consistent with her

research that “typical adolescent behaviors” are increasingly characterized as crimes, especially for youth of color.²⁹⁷

It is necessary to recognize that bias also plays a powerful role in influencing which young people are encouraged to take risks and break rules in the pursuit of creativity and innovation. The contrast is evident in tech, in which risk-takers and rule breakers are revered and in high demand. Paul Graham, co-founder of the Y Combinator start-up accelerator, famously wrote in 2005 that investors “should be funding hackers instead of suits.”²⁹⁸ This revolutionary mindset that the “best founders were hackers” transformed the venture-capital industry.²⁹⁹ Called “Silicon Valley’s Start-Up Machine,”³⁰⁰ Y Combinator’s first cohort included the founders of Reddit and Sam Altman (now CEO of OpenAI), and has been credited with “chang[ing] the world” for the start-ups it supported, including Airbnb, Dropbox, Instacart, Stripe, and Substack.³⁰¹

In tech, acts that are unethical, or even outright illegal, have been overlooked because they were framed as innovative and creative. For instance, Sean Parker and Shawn Fanning were teenagers when they created a peer-to-peer music-sharing program Napster that upended the music industry.³⁰² Even as investors questioned whether the technology was “legal or not,” they still gave Napster multiple investment offers.³⁰³ Meanwhile, Elizabeth Holmes was long hailed as a genius for a technology that proved nonexistent. At the age of nineteen, she dropped out of Stanford University and founded Theranos to detect health conditions from a few drops of blood.³⁰⁴ Her “creative disruption” brought in large investments and wide acclaim, and she eventually defrauded investors and regulators and harmed

patients.³⁰⁵ While she was eventually convicted of multiple crimes, it took an in-depth investigation by a journalist to shatter the illusion.³⁰⁶

Mark Zuckerberg and Facebook’s rise to power have also been shrouded with allegations of unlawful behavior. While working for his classmates at Harvard on a similar concept, Zuckerberg allegedly stalled their project and launched Facebook instead.³⁰⁷ The classmates later created their own site, ConnectU, but evidence showed that Zuckerberg hacked into ConnectU’s website and altered user information to make the “site less useful,”³⁰⁸ including changing the privacy settings to make them less visible and deactivating twenty accounts.³⁰⁹ Credible allegations also support that he took users’ private login data from Facebook to hack into their private email accounts and read emails.³¹⁰ Even before Zuckerberg’s foray into Facebook, he faced Harvard’s Administrative Board to address charges for “breaching security, violating copyrights and violating individual privacy” for “his unauthorized use of on-line facebook photographs” for a website that ranked students’ attractiveness.³¹¹ Zuckerberg declined to disclose the board’s eventual actions, but shared that he was not required to withdraw or leave school.³¹² Zuckerberg did not face criminal prosecution for any of these actions.

Similarly, the young executives and inner circle of FTX (a cryptocurrency exchange),³¹³ who all graduated from elite universities, benefited from an aura of creativity that enabled them to defraud investors and customers of billions of dollars for years before they were finally prosecuted.³¹⁴ The image of the founder as an “eccentric genius” and “wonder child” distracted from the misuse of funds and financial crimes.³¹⁵ Biases again played a significant role in construing these actions that broke norms and rules as creative and innovative. As O’Mara observed, the “whiz kids” are “almost exclusively, male, [W]hite and young.”³¹⁶ They benefit from their class and prestige from elite universities like Harvard, Stanford, and MIT. Society is “still fixated on the idea of the eccentric genius accomplishing extraordinary things.”³¹⁷

Notably, tech experts have not responded to these high-profile incidents by calling for stricter criminal laws or increased criminal prosecutions. Instead, some even caution against new regulations, arguing they are not “only costly and potentially harmful for innovation, but also limited in its effectiveness.”³¹⁸ Proposed solutions instead focus on changing business practices, such as insisting on a work culture of experimentation, failure, and honesty;³¹⁹ requiring more information to confirm claims and research that are being presented;³²⁰ and either relying on technology or creating new ones to allow for transparency and confirmation of data.³²¹ Similarly, leaders in the cryptocurrency industry, despite several prominent criminal prosecutions,³²² are also not advocating for more criminal laws or prosecutions. Instead, they actively seek clarification on what is legal, arguing that it is essential for continued innovation in the crypto space.³²³ These requests may, themselves, signal the inadequacies in our current laws and a need for new legal frameworks to accommodate this new technology.³²⁴

In the gray space in which creativity and criminality coexist, and actions and behaviors are by definition deviant and unexpected, biases can determine whether the coin lands on the side of creativity or crime. Recognizing that bias profoundly affects the labeling of creativity or crime, and working to eliminate these biases, is an important and necessary step to prevent the criminalization of creativity.

New Laws and Policies

In addition to addressing biases, creating specific laws and policies that prevent the criminalization of creativity, and that reduce reliance on criminal prosecutions overall, could foster and protect the creativity and healthy development of young people, ultimately benefiting the criminal and juvenile systems, as well as society as a whole.

First, new laws can directly limit how creative expressions are used in criminal prosecutions. For instance, California’s Decriminalizing Artistic Expression Act from 2022 limits when “creative expressions,” including “music, dance, performance art, visual art, poetry, literature, [and] film,” may be introduced as evidence in criminal trials.³²⁵ In assessing the probative value of the evidence against the “substantial danger of undue prejudice,” there are explicit protections for creativity and prohibitions against their misuse.³²⁶ In August 2023, Louisiana became the second state to pass similar legislation to prohibit or limit the use of creative works, such as rap lyrics, in criminal prosecutions.³²⁷ Congress is also considering such restrictions through the Restoring Artistic Protection Act,³²⁸ and there are similar measures in other states, such as New York and Missouri.³²⁹ These limitations are necessary especially since the First Amendment has offered insufficient protection to stem the use of rap lyrics in criminal trials.³³⁰

In addition, new policies should be implemented to increase opportunities for young people to engage in positive risk-taking through creative outlets. Risk-taking is a natural part of youth development, and channeling it into constructive outlets minimizes the likelihood of engaging in negative risks.³³¹ Rather than resorting immediately to criminal prosecutions to address unexpected or nonconforming behavior in young people, creative alternatives should be explored. For instance, some cities have countered the harms associated with graffiti by establishing designated public spaces or “permission walls,”³³² offering a constructive outlet for creative expression. Expanding such initiatives can provide more avenues for young people to engage in healthy risk-taking through creative activities.

This approach could also extend to fields like technology and start-ups, in which creativity and innovation are at the forefront. This is especially critical for Black founders who “face far more difficulty raising money than their [W]hite competitors.”³³³ Programs and initiatives that provide training, networking opportunities, and access to capital are some ways to ensure that young people from all backgrounds are engaging in positive risk-taking, thereby reducing negative risk-taking endeavors.

Overall, promoting inclusive creative opportunities and preventing the criminalization of creativity will require original, bold, and unconventional thinking. Importantly, young people should actively participate in shaping and implementing these policies and initiatives. Their innate creativity and insight into what motivates them and their peers can help develop effective and impactful laws and policies.

B. Punishing Crime

Next, applying a developmental framework that prioritizes and protects young people’s creativity should also reshape punishment. While the developmental framework has already led to significant progress in limiting how young people are punished,³³⁴ further measures are necessary to safeguard and cultivate their creativity, even after a criminal conviction or juvenile delinquency adjudication. These changes also pave the way for broader systemic reforms for all people.

Our current system of punishment, especially incarceration and confinement, crushes and stifles creativity. In general, there is “widespread acceptance of boredom as punishment,”³³⁵ and the American prison system is particularly adept at implementing a “long-term boredom.”³³⁶ This boredom may be overshadowed by other harsh realities of prison life, such as violence or abuse, that impose long-term trauma.³³⁷ It may also be obscured by prominent creative works produced during incarceration,³³⁸ or feel-good accounts of arts programming or creative breakthroughs in prison.³³⁹ However, these stories of creativity and innovation are the exception, not the norm.³⁴⁰ Rather, “the central realities of incarceration for inmates” include its “crushing routine and relentless boredom.”³⁴¹

Nearly every aspect of American prisons—from their architecture to their lack of programming—imposes a controlled and dull existence for those imprisoned. “By their very design and aesthetics, the physical buildings and layout of American prisons cultivate feelings of institutionalization, immobilization, and lack of control . . . .”³⁴² Additionally, “[a]s prison life has become more restricted and punitive, it has simultaneously become more monotonous.”³⁴³ Although some jurisdictions have expanded postsecondary-educational opportunities, there has been an overall decline in “opportunities for paid work, as well as rehabilitative, vocational, and postsecondary programming.”³⁴⁴ Opportunities for creativity and innovation are severely lacking,³⁴⁵ and the prison experience is one of “too much drudgery.”³⁴⁶

The harshest and most severe forms of punishment are worse. Maximum-security prisons are “usually monotonous and boring.”³⁴⁷ To the extent that the dullness is interrupted, it is due to “outbursts of violence.”³⁴⁸ The “threat of violence is real enough in maximum security prisons to produce a constant undercurrent of tension, fear, and wariness among inmates and staff.”³⁴⁹ Solitary confinement, one of the harshest punishments, also incorporates extreme boredom. As Saida Grundy observed, solitary confinement is “specifically designed to numb all of one’s senses and maximize suffering.”³⁵⁰ In essence, “boredom is an essential quality of one of the most severe forms of punishment.”³⁵¹ It is unsurprising then that solitary confinement causes such severe developmental harm.³⁵² The acknowledgment of this harm has substantially decreased its use against children³⁵³ and should be expanded to others as well, especially emerging adults.

Creative outlets in confinement are essential, particularly for young people who require creative outlets for healthy development. Creativity can be transformative, even lifesaving, for those who are incarcerated. For instance, Reginald Dwayne Betts, a lawyer, scholar, poet, and MacArthur Fellow, was sentenced to a nine-year prison term at the age of sixteen for much of his adolescence and early adulthood.³⁵⁴ Betts recounted that during his time in prison and solitary confinement,³⁵⁵ “reading is where [he] found freedom, and writing is where [he] was able to express [his] individual thought, imagination and creativity.”³⁵⁶ After serving his sentence and then attending law school, Betts helped create the Million Book Project to send “a curated 500-book collection to 1,000 medium and maximum security prisons” and “at least one juvenile detention center” in every state.³⁵⁷ This mission continues through the nonprofit organization Freedom Reads, which Betts cofounded and serves as executive director.³⁵⁸

Studies support Betts’s experience. Art programs in prisons improve individuals’ well-being and reduce recidivism when people leave prison.³⁵⁹ Participants in art therapy “improved socialization skills, had improved attitudes, and were less depressed.”³⁶⁰ Additionally, these programs contributed to a safer prison environment by reducing “prison incidents,” “rules violations,” and violence.³⁶¹

These opportunities for creativity should not detract from efforts to prevent sending people to prison in the first place. Prisons damage the well-being of those who are incarcerated, and the experience of incarceration in the United States is criminogenic.³⁶² The damage to the developmental health of young people is even more serious. Even short periods of incarceration cause long-term damage to adolescents’ development.³⁶³ Rather, creative expressions and programs can assist with efforts to end mass incarceration and the incarceration of young people. For example, the sale of Roy Lichtenstein Masterpiece led to an endowment of $100 million for Ford Foundation’s Art for Justice Fund, which has the mission to provide art-based grants to reduce mass incarceration.³⁶⁴ The organization has funded programs, such as the one between Los Angeles County and its Arts Commissions to create the Arts and Youth Development Project.³⁶⁵ The project sponsors art programs for youth who are at risk of entering the juvenile system, as well as programs for youth who are already incarcerated or in a prediversion program.³⁶⁶

Additionally, protecting young people’s creativity should be prioritized in other forms of carceral control, such as probation, parole, and supervised release. There are approximately 3.7 million people under some form of community supervision.³⁶⁷ Probation is the most common juvenile delinquency disposition.³⁶⁸ According to the latest data, 188,200 juvenile delinquency cases had a disposition of probation in 2022.³⁶⁹ Community supervision imposes numerous and wide-reaching restrictions and controls over individuals’ lives.³⁷⁰ These restrictions also limit one’s creativity, as they can dictate who an individual associates with or what type of activity the individual engages in. For example, in one recent federal criminal case, a defendant was arrested for violating the terms of his supervised release for working with people with prior felony convictions to produce and perform rap music that allegedly “promot[ed] and glorifi[ed] future gun violence/murder.”³⁷¹ While the court modified the terms to be less restrictive than the prosecutors’ request, it still ordered the defendant to submit his rap lyrics to the government for pre-approval before promoting or producing his songs to ensure that they are not “inconsistent with the goals of rehabilitation.”³⁷² These types of conditions directly target and limit one’s creativity and may actually hinder rehabilitation.

Alternatively, as an example of a probation condition that recognizes the importance of youth creativity, one can turn to the program by Creative Justice. This organization, while advocating for the abolition of prisons,³⁷³ works within the juvenile system to provide “arts-based healing engaged spaces” for young people such that their “time and creative work can be used in mitigating any active court cases or other systemic burdens they may be facing.”³⁷⁴ In collaboration with mentor artists, these youth “explore the root causes of incarceration, weaving together art, creativity, and restorative justice” for personal and societal change.³⁷⁵ Programs like this demonstrate the need for innovative solutions to foster young people’s creativity even while under carceral control. The “window of opportunity” during this life stage can lead to long-lasting changes that contribute to the well-being of individuals and their communities.³⁷⁶ Efforts with a focus on creativity should lead to broader systemic reforms across the entire criminal system.

IV. Creativity and Crime in Schools

Another significant space in which creativity and crime collide for young people is the education system. Applying a developmental framework that prioritizes creativity should expand opportunities in schools for young people to develop and express their creativity. Yet schools are moving in the opposite direction. Alongside a pervasive educational culture marked by widespread boredom and a broader creativity crisis among our youth,³⁷⁷ schools are increasingly adopting criminal processes and entrenching the school-to-prison pipeline, particularly for marginalized youth from poor communities.

This Part first describes this problematic culture of criminalization that has taken hold in the educational system and then proposes ways that schools can instead cultivate a culture of creativity. Expanding students’ creativity not only increases engagement in their education and enhances young people’s well-being, but it also reduces the likelihood of negative risk-taking³⁷⁸ and becoming entangled in the juvenile or criminal systems. These normative proposals also continue to highlight the close connections between crime and creativity.

A. Culture of Criminalization

A pervasive culture of criminalization characterizes our current educational system, exemplified by the school-to-prison pipeline. This pipeline refers to “policies and practices that systemically push at-risk youth out of mainstream public schools and into the juvenile or criminal justice systems.”³⁷⁹ This includes “the trend of referring students directly to law enforcement for committing offenses at school or creating conditions that increase the probability of students eventually becoming incarcerated, such as suspending or expelling them.”³⁸⁰

The relationship between schools and the juvenile and criminal systems has “tightened significantly” over the recent decades.³⁸¹ There is more reliance on criminal tools and processes, such as the increased usage of surveillance, school resource officers (“SROs”) or police officers, and school disciplinary processes that heighten the risk of youth involvement in the criminal or juvenile systems.³⁸² Furthermore, the expanding creation and enforcement of “disturbing school statutes” are being used to criminalize or harshly discipline “common adolescent misbehavior, such as texting and refusing to hand over a cell phone, burping, using perfume, throwing a paper airplane, stealing a beef patty, [and] writing on desks.”³⁸³ These offenses and crimes such as “insubordination” or “willful defiance” are inherently difficult to define.³⁸⁴

Such statutes are also the common reason for punitive actions. For example, 40% of all school suspensions during the 2010 to 2011 school year in California were for “willful defiance,” which is defined in part as “any behavior that disrupts a classroom.”³⁸⁵ In New York City public schools, “insubordination” was the most cited reason for suspensions in the 2013 to 2014 school year.³⁸⁶ Again, it is these “tough-to-define”³⁸⁷ offenses that, consistent with other disorderly conduct offenses, give wide latitude to decisionmakers,³⁸⁸ like school administrators or SROs, to determine if young people’s actions are creative or criminal.

Moreover, zero-tolerance policies, which were ushered in by the national Gun-Free Schools Act of 1994,³⁸⁹ also create an “extreme category of exclusionary discipline.”³⁹⁰ Under this Act, as a condition for receiving federal funds, states were required to pass laws that mandated schools to expel students for at least one year if they brought guns to school.³⁹¹ The enforcement of this Act, however, was inconsistent, with students being expelled or sent to authorities for bringing “butter knives (for sandwiches), plastic toy guns, or Swiss Army knives, and for swearing or engaging in any behavior considered disruptive by school officials.”³⁹² This federal policy then spurred local and state zero-tolerance policies that mandated expulsion or discipline for other actions, such as “possession of drugs, alcohol, or tobacco; fighting; dress-code violations; truancy; and tardiness.”³⁹³

It is sadly ironic that, as Bettina L. Love opined, the very creativity that young Black students expressed through hip-hop was used against them to create stereotypes that helped justify and spur these punitive school reforms in the 1980s and 1990s that then continue to restrict their creativity and enable its continued criminalization.³⁹⁴ The Black children who helped make hip-hop a celebrated worldwide “cultural phenomenon” were contemporaneously “punished . . . for the very creativity they expressed in hip-hop.”³⁹⁵ They were called “super predators,” “crack babies,” and “thugs,” and their “youth culture” was upended “to reinforce these labels, not just outside of school but, more perniciously, inside school.”³⁹⁶ The very stereotypes that supported police brutality in their communities also justified such practices in their schools.³⁹⁷ They “were no longer children but pre-criminals. Schools were no longer schools but pipelines to prison.”³⁹⁸

Together, these laws, policies, and practices have made it easier and more common for students to be directly referred to the juvenile or criminal systems. For example, there is evidence “that a school’s SRO/police presence corresponds with an increased likelihood that the school will report student incidents to law enforcement agencies.”³⁹⁹ One study showed that schools with police officers or SROs have had “five times as many arrests for ‘disorderly conduct’ as schools without them.”⁴⁰⁰ Even if they are not directly referred, internal school disciplinary proceedings, such as suspensions or expulsions, increase the risk that youth will eventually become part of the juvenile or criminal system.⁴⁰¹ Merely attending a middle school with more suspensions—even if the students themselves are not suspended—increases the likelihood that they will be involved in adult crime, arrested, and incarcerated, and less likely that they will finish high school and attend college.⁴⁰² Moreover, some contend that these processes themselves “contribute to a quasi-prison-like environment” directly within schools.⁴⁰³

The school-to-prison pipeline also disproportionately impacts youth of color. There is “[a]bundant empirical evidence” that shows that youth of color are “disproportionately represented throughout every stage” of this pipeline.⁴⁰⁴ This includes more frequent and more severe disciplinary actions within schools and high rates of arrest and convictions in the juvenile and criminal systems.⁴⁰⁵ Schools with a larger proportion of marginalized students also have higher rates of surveillance, even after controlling for other factors such as “student poverty, . . . [performance] . . . on academic assessments, school crime, school disorder and disciplinary problems, and school administrators’ perceptions of the level of criminal activity in the surrounding neighborhoods.”⁴⁰⁶ Racial disparities are also present in suspending and expelling students, even after “controlling for factors such as student misbehavior, poverty, academic achievement, neighborhood context, and district and school characteristics.”⁴⁰⁷ Other empirical research has shown more nuance, with studies showing no racial disparity against Black students “for more serious and objectively defined offenses, especially when discipline is mandated for engaging in such offenses,” but racial disparities manifesting when the offense is less serious or when “discipline is discretionary.”⁴⁰⁸ This study is consistent with scholars’ observations about the heightened discretion inherent in disorderly conduct offenses that enhances the effects of biases.⁴⁰⁹

Significant changes are required as education remains one of the most effective ways for youth to avoid engaging in adult crime or becoming enmeshed in the juvenile or criminal systems. Attending a “higher-quality school” and completing high school lessen the risk of future criminal activity.⁴¹⁰ For Black youth, those who do not graduate high school have an approximately “70 percent cumulative risk of imprisonment.”⁴¹¹ Merely increasing the minimum dropout age, such as raising the age from sixteen to eighteen, has “a significant and negative effect on juvenile crime.”⁴¹² It particularly reduces property and violent crimes for those in high school.⁴¹³ Studies show that those in prison also generally have less education.⁴¹⁴ Meanwhile, youths who experience juvenile detention or incarceration are less likely to attend high school, and they experience higher risk of being imprisoned as an adult,⁴¹⁵ again highlighting another close connection between schools and crime.

Therefore, applying a developmental framework that prioritizes young people’s creativity involves not only dismantling the school-to-prison pipeline, but also encouraging their engagement in schools and supporting their eventual graduation. One effective approach is to create more opportunities for creative expression in their education.

B. Creating a Culture of Creativity

Schools not only influence young people’s paths toward or away from crime, but schools also play a crucial role in guiding their creativity. Education is, in fact, “essential to creativity.”⁴¹⁶ Since creativity “requires a high degree of domain knowledge,” schools are vital in facilitating this attainment.⁴¹⁷ Transforming schools into more creative spaces can motivate students to care about their education, remain in school, and also reduce the likelihood that they will enter the criminal or juvenile systems.

Many scholars, however, hold the current educational system largely responsible for contributing to the “creativity crisis” among youth in America.⁴¹⁸ In both secondary and higher education, creativity is generally not prioritized and, at times, is actively undermined. Kim, who has documented the decline in creative thinking among K-12 students, points to an overemphasis on standardized testing and test-taking skills in classrooms as a major contributing factor to this decline.⁴¹⁹ She is not alone in her critique.

Regarding high schools, Steinberg observed that except for the “very best American students—the ones in [Advanced Placement] classes who are bound for the nation’s most selective colleges and universities—high school is tedious and unchallenging.”⁴²⁰ Research shows that adolescents are most bored when they are in school, and that their “moods improve dramatically around 3:00 p.m. and toward the end of the week, as the weekend approaches.”⁴²¹ According to surveys, most high schoolers shared that “they are just going through the motions at school, calibrating their level of effort to ensure that they do well enough to stay out of academic trouble,” while one-third responded “that they have little interest in school and get through the day by fooling around with their friends.”⁴²² Compared with other countries, American schools are generally “more boring.”⁴²³ In one study, more than 80% of international students who studied in American high schools found them less challenging than schools in their home countries.⁴²⁴ This issue persists in higher education. Overall, colleges and universities provide “little support for creative students.”⁴²⁵ The admissions criteria for college also do not adequately assess students’ creativity and, therefore, miss opportunities to admit and enroll “daring [and] imaginative thinkers.”⁴²⁶

Increasing creativity in schools is a challenge when the very model and structure of the American educational system were not designed with this goal in mind. Instead, this system is based on an industrial model. The “[s]ystems of mass education were designed to mold students to certain requirements.”⁴²⁷ Like “typical factories, high schools and higher education in particular are organized around the division of labor.”⁴²⁸ The typical school day is “segmented into regular chunks of time” and teachers “specialize in particular subjects.”⁴²⁹ Similarly, “[i]ndustrial processes demand compliance with specific rules and standards.”⁴³⁰ This is echoed in the “standards movement” in education, which requires “compliance in curriculum, teaching, and assessment.”⁴³¹

Moreover, in most K-12 classrooms, students are placed in small classrooms, “often are required to work quietly and individually,” and work on “problems that have already been solved” or have “one correct or expected way of completing them.”⁴³² There is “continuous monitoring and assessment of students and teachers,” which reinforces conformity and monotony.⁴³³ Although teachers may claim to value creativity and creative students, they often “dislike characteristics associated with creativity” such as nonconformity.⁴³⁴ As a result, many creative students find the standardized methods of teaching not only unhelpful, but also “distracting.”⁴³⁵ These issues are even more pronounced in schools in poor, marginalized communities. Students contend with minimal resources, violence, and chronic disengagement. Such schools not only function as pipelines to prison but also increasingly mirror prison-like environments, characterized by disorder, apathy, and lack of meaningful opportunities for growth.⁴³⁶

An increasing number of students and their families are opting to leave traditional schooling.⁴³⁷ Families from diverse backgrounds and regions of the country are turning to homeschooling, now recognized as the “fastest-growing form of education.”⁴³⁸ While motivations for homeschooling vary—ranging from educational and religious reasons, to minimizing racism⁴³⁹—there is evidence that homeschooling fosters creativity in youth, both in the United States and abroad.⁴⁴⁰ Other nontraditional schools take different approaches, such as incorporating a “democratic process” in which students decide what they want to learn, changing the educational environment into “one of adventure and discovery rather than stricture.”⁴⁴¹ Meanwhile, the “Slow Education” model emphasizes giving students the “space and the time to discover their passions and their strengths.”⁴⁴² The model was developed by Joe Harrison while working for Creative Partnerships, a government program in the United Kingdom designed to increase creativity in schools.⁴⁴³

However, access to nontraditional and alternative educational models is limited. Schools that adopt a democratic process are mostly private schools.⁴⁴⁴ Similarly, the Slow Education model requires that the “school and community devote[] time to learn who each individual student [is] and what they [are] about, and to create programs geared to specific interests, and capacities.”⁴⁴⁵ Unfortunately, many schools lack the resources and time to implement these approaches, and many families cannot afford private schools or homeschooling.

Incremental changes, however, can be introduced in both secondary and higher education. Increasing creativity in schools does not mean eliminating standards or encouraging “antisocial behavior.”⁴⁴⁶ Instead, the singular focus on conformity—or “judg[ing] students by a single standard of ability”—should be reduced.⁴⁴⁷ To do so, schools should celebrate the diversity of “individual talents” among their students.⁴⁴⁸

Also, while there is a movement toward teachers using scripted materials, they can also reduce “improvised, creative, collaborative learning.”⁴⁴⁹ As creativity expert and professor Keith Sawyer recommended, while teachers should be experts in their subject matters and can use scripted materials, they must also create space for improvisation—both among students and between the teacher and students.⁴⁵⁰

As “[t]he real driver of creativity is an appetite for discovery and a passion for the work itself,” teachers and schools should explore creative ways to motivate students to learn.⁴⁵¹ A meta-analysis of adolescent creativity found that key educational factors that best support creativity include “balancing freedom and necessary guidance; flexible, open-ended activities with clear learning expectations; openness to and encouragement of student ideas; an atmosphere of trust and respect; and varied learning resources.”⁴⁵² Implementing the “seven habits of mind”—“posing questions, play, immersion, innovation, risk taking, being imaginative, and self-determination”—also increases creativity.⁴⁵³

High schools and colleges can also foster creativity by “role model[ing] creativity.”⁴⁵⁴ The “most compelling way” to inspire creativity is to model it.⁴⁵⁵ Additionally, “teaching students to cross-fertilize their thinking across various disciplines” and to connect these ideas to personal interests are important.⁴⁵⁶ Projects and assignments that provide students time to be creative, work with others to be in “creative collaboration,” assess and reward creativity, are also effective.⁴⁵⁷

Prioritizing creativity in young people’s educational environments can inspire positive risk-taking, reduce negative risk-taking, and enhance their overall well-being. It encourages them to remain in school and graduate, thereby decreasing their risk of entering the juvenile and criminal systems. In addition to dismantling the school-to-prison pipeline and eliminating biases that mischaracterize students’ creativity as criminality, schools should make intentional efforts to prioritize and cultivate creativity among their students.

Conclusion

The significant overlap between creativity and crime presents both a challenge and an opportunity. As the two are deeply intertwined, they can easily be mischaracterized, with creative actions labeled as criminal ones or construed as evidence of one’s criminality. This issue is particularly salient for young people, whose developmental traits heighten both types of behaviors and who are at a critical stage for cultivating their creative identity.

As the developmental framework increasingly shapes laws and policies affecting adolescents and emerging adults, prioritizing creativity is imperative. This Article examined how centering creativity should change how young people are prosecuted and punished for crimes or offenses, as well as how they are educated. Addressing biases and adopting laws, policies, and practices that deter the criminalization of creativity and recognize creativity as an integral factor of young people’s development will not only advance the main goal of the developmental framework—the well-being of adolescents and emerging adults—but also lay the groundwork for broader systemic changes that benefit society as a whole.

99 S. Cal. L. Rev. 499

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Esther K. Hong*

* Associate Professor of Law, Arizona State University, Sandra Day O’Connor College of Law. For their generous insights and comments, the author thanks Chaz Arnett, Rachel Barkow, Alyse Bertenthal, Emily Buss, Sheldon Evans, Trevor Gardner, Josh Gupta-Kagan, Vivian Hamilton, Elizabeth Scott, Ronald Wright, and the participants of the ABA-AALS Criminal Justice Roundtables; the AALS Family and Juvenile Law Section Works-in-Progress Session, The Future of Family Law; Culp Colloquium at Duke University School of Law; CrimFest; the University of Ottawa Public Law Centre Criminal Law Workshop; the University of Arizona/Arizona State University Junior Faculty Workshop; and the Wake Forest University School of Law Juniors Workshop. The author also thanks Donny Stewart and Haley Potter for their excellent research assistance, and the editors of the Southern California Law Review for their excellent editorial work.

Beyond Sharenting

April 2026April 2026Stacey Barell Steinberg*

Sharenting—the practice of parents sharing information about their children online—has become mainstream in American society. While most forms of sharenting may be considered benign or even beneficial, some parents harm or exploit their children when sharing online. For example, “mom-influencers” often violate their children’s privacy in their attempts to attract followers to their social media accounts. While traditional forms of parental sharing raise privacy concerns, we are only beginning to understand the dangers and impacts of widespread exposure of children on social media.

This Article is the first to propose a welfare model of child protection to address exploitative and harmful parental online conduct. The state, through its parens patriae power, already regulates parents who harm children in the brick-and-mortar world. The state must exercise that same power to protect children in the virtual world. This Article offers comprehensive solutions grounded in constitutional law principles that balance the parental right to control the upbringing of their children and to free expression with the state’s interest in protecting vulnerable children from harmful and exploitative online conduct. When parents go “beyond sharenting,” the state must be prepared to step in and protect vulnerable children.

Introduction

Mia is a seven-year-old girl growing up in Orlando, Florida.¹ Her mother, Savannah, is a stay-at-home mother, and her father, John, is a successful businessman.² Savannah is very active on social media. She has a public Instagram account and considers herself an influencer. Many lingerie brands pay her to model their clothing, and she often poses in pajamas alongside her daughter.³ Recently, a lingerie company from overseas offered Savannah money to have Mia also pose in their clothing. Savannah said yes. Over the next few weeks, she begins receiving the nighties—matching lingerie Savannah regularly models but in less revealing cuts. Savannah has Mia try some on, and while it covers her private areas, it highly sexualizes the little girl, with the matching prints suggesting her eventual graduation to those more mature silhouettes. Savannah tells Mia that she will get extra dessert for each outfit she agrees to model. The pair often model the outfits in pictures and videos together, sometimes wearing the outfits while reading together in bed, having pillow fights, or being playful around the house—always in clearly intimate but arguably appropriate settings.

Savannah’s social media page explodes with new followers. Based on their profiles, many of these followers appear to be grown men.⁴ Images of Mia receive hundreds of likes and multiple comments, some of which seem inappropriate.⁵ Savannah deletes the most inappropriate comments, but she leaves others, hoping to increase the engagement on her page.⁶ As Savannah’s social media following grows, so too does the amount of money the lingerie company pays her per outfit modeled.

Mia tells her teacher, Ms. Drake, about the social media page. Ms. Drake speaks with the school administrators and shows them the mother’s Instagram page. The school reaches out to Mia’s mother, Savannah, and to Mia’s father, John, to implore them to reconsider sharing the photos, to no avail. Savannah keeps sharing.

Ms. Drake sees this as a potential form of abuse and neglect⁷ and, according to her obligation as a mandatory reporter, she wants to call in an abuse report on the mother as she worries for Mia’s safety and privacy.⁸ She makes the hotline call to the state’s central abuse registry.⁹ She provides information and even emails the registry pictures, but the intake counselor declines to accept the hotline call.¹⁰ The counselor explains that posting the pictures is not grounds for an abuse, abandonment, or neglect investigation.¹¹ The parent is simply sharenting, the counselor explains, and that is within a parent’s right to do so as they see fit.¹² There is nothing the intake counselor believes she can do.¹³

Parents in the United States do, in fact, have almost unfettered discretion when it comes to sharing about their children.¹⁴ And our legal system is ill-equipped to protect children like Mia.¹⁵ Unless Savannah agrees on her own to stop sharing these inappropriate pictures of her daughter, they will continue to be shared. Images already online can be saved and reshared by strangers, and Mia’s digital footprint may always be marred with traces of her mother’s online conduct.¹⁶ And, while parents have been sharing images of their children with the public long before the creation of the Internet, the life of online images is likely to long outlast Mia’s childhood.¹⁷

As I have described previously, sharenting, or the practice of parents sharing information about their children online, has become mainstream in American society.¹⁸ Parents post information about their children on various platforms, often with the goal of connecting and sharing about their lives with family and friends.¹⁹ While most parents share with the intention that their pictures and stories reach a limited audience,²⁰ others share publicly.²¹ Furthermore, some parents gain financial or social capital through sharing, and children may lose their current and future sense of privacy and autonomy as a result. The children may be pressured into allowing themselves to be recorded in uncomfortable ways or photographed in embarrassing situations. This sharing is at times exploitative, and it is likely more harmful than more personal forms of sharing—that of noninvasive photos and memories among family and friends.²²

The public, as well as many academics working in this space, refer to parents who share detailed information about their family in public ways as “mom-influencers,”²³ and the children are referred to as “kid-influencers.”²⁴ These parents may be well-meaning, but their actions can present significant danger.²⁵ Legal remedies do not exist to protect children whose parents overshare online, and as such, these children are left at risk for abuse and exploitation.²⁶

In the United States, parents are primarily responsible for the well-being of their children, and the government will only intercede in the most necessary of circumstances.²⁷ For example, parents can generally discipline their children as they see fit.²⁸ However, they may not physically abuse their children without facing legal consequences. But this was not always the case. In 1800, spanking a child lightly and beating a child both fell under the penumbra of parental rights.²⁹ But today, two penumbras exist.³⁰ Parents may use corporal punishment only to the extent permitted by law.³¹ Recognizing that parental rights must be balanced against the state’s parens patriae powers, states have laws that allow parents to use reasonable corporal punishment on their children but prohibit child abuse, which is often understood as excessive (and unreasonable) corporal punishment.³² When parental conduct goes beyond mere corporal punishment, parents are under the second penumbra, child abuse, and may face criminal and civil prosecution.³³

“While parents must bear the primary responsibility for meeting the needs of their children,” Monrad Paulsen posits in his 1966 article The Legal Framework for Child Protection, “society has an obligation to help parents who for one reason or another are unable or incapable of satisfactorily fulfilling their role.”³⁴ Paulsen’s framework was written with corporal punishment in mind, but the same core tenets can be applied in the context of sharenting. The general responsibility to control a child’s social media footprint must lie primarily with the parents.³⁵ But society must also bear an obligation to step in when parents are “unable or incapable of satisfactorily fulfilling their role.”³⁶ Companies have also been called upon to protect children by policing content posted on their platforms, whether it be self-imposed or by legislative mandate.³⁷

Much like how child abuse falls beyond the bounds of acceptable parental discipline, exploitative sharing about children publicly and for profit often falls beyond the bounds of acceptable sharenting, thus necessitating legal protections and remedies for children who are harmed or at risk of harm by their parents’ conduct. When parents go “beyond sharenting,” they have engaged in a course of conduct that calls for state action to minimize harm to their children.

Scholars, parents, and politicians are grappling with this new reality, but scholarly literature has yet to propose comprehensive frameworks or realistic solutions. In 2017, I published the first scholarly article on sharenting, drawing from my professional and practical experience as a law professor and clinician.³⁸ This Article builds on that work, further developing a scholarly account for when sharenting crosses the line into problematic harm or exploitation and advancing several solutions.

This Article will proceed in three parts. Part I of this Article provides an overview of child abuse law. It considers the rights parents have under the substantive due process clause of the Fourteenth Amendment.³⁹ As later Sections of the Article explain, the law must evolve to recognize the legal boundaries of sharenting, utilizing the state’s parens patriae powers to protect children when their parents fail to do so.⁴⁰

Part II of this Article discusses how our legal system fails to protect children’s privacy online. Furthermore, this Part offers readers an overview of sharenting. This parental practice of sharing about children online also receives protection under both the substantive due process clause of the Fourteenth Amendment and the free speech protections outlined in the First Amendment.⁴¹ In most circumstances, parents are best suited to control the upbringing of their children both on- and offline.⁴² To that end, Section II.B explores federal laws that aim to keep young people safe online,⁴³ both from harm caused by the child’s own conduct online and harm to children by others collecting, storing, selling, or otherwise disseminating a child’s information or imagery in a way that poses a risk of harm to children, specifically focused on the practice of sharenting.⁴⁴ This Section will explore laws spanning from the 1998 Children’s Online Privacy Protection Act,⁴⁵ which places parents in control over the information third parties collect about children online, to today’s attempts to regulate children’s own conduct when they use social media themselves.⁴⁶ Next, this Section will explore how states have attempted to fill the gaps left open by the lack of comprehensive federal legislation that protects children online.⁴⁷ It will outline how states have managed to empower parents to take control of their children’s online experiences and information to better protect their families and also how some states have begun to limit how parents share online.⁴⁸ Lastly, Section II.C will discuss how other countries have attempted to protect children online, highlighting how foreign governments appear far more willing to exercise parens patriae powers to protect children than the U.S. government or the states.⁴⁹ This Section will discuss the role of the United Nations Convention on the Rights of the Child (“UNCRC”) in protecting children, and perhaps more importantly, the role of the UNCRC in recognizing children’s rights to privacy and protection in digital environments.⁵⁰ This children’s rights-based framework is recognized by over 192 nations and is quite different from our parents’ rights-based framework in the United States.⁵¹

Part III of the Article will propose a new model for children’s online privacy protection. Just as child welfare laws have evolved to separate legal corporal punishment from child abuse, Section III.A will argue that the United States must separate legal parental sharenting from online abuse and exploitation perpetrated by parents. Utilizing the doctrine of parens patriae,⁵² this model recognizes that there are limits to parental autonomy.⁵³ While determining those limits is challenging, systems exist that allow for child welfare professionals to use evidence-based research to inform new policy in this arena.⁵⁴ This policy can include comprehensive measures that allow for a public health campaign educating parents on the difference between acceptable sharenting and online child abuse or exploitation.⁵⁵ The public health campaign would be accompanied by new methods of reporting instances of exploitative or abusive sharenting and provide funding for such reports to be investigated by well-trained professionals who, like traditional child welfare professionals, proceed first by working to educate and strengthen families so that parents can be supported to make better online sharing decisions for their families.⁵⁶ However, these professionals must also be empowered with legal methods to protect children if parents fail to do so. Through a judicial process, the state should be permitted to take action to protect children in the virtual world much as it does in our brick-and-mortar one.

Parents rarely neglect or abuse their children because they are intentionally malicious.⁵⁷ Most do so because they either do not have the resources they need to make better parenting decisions, or they are unaware of how they can better meet their own needs to meet those of their children simultaneously.⁵⁸ Our legal systems have evolved to offer parents assistance to create healthier living environments for their children⁵⁹ and to give the state tools to take action that protects children from harm (and risks of future harm) within the home.⁶⁰ Similarly, parents rarely exploit their children online because they are intentionally malicious.⁶¹ Most do so because they are unaware of the risks such oversharing presents or need the financial or social assistance such oversharing provides.⁶² The state must have tools to empower parents to make smarter sharing decisions for their families.⁶³ And the state must also have tools to step in and protect children when parents fail to do so or when harm is significantly likely to occur.⁶⁴

I. Child Protection In The United States

In the United States, strong deference is given to parents to raise their children as they see fit.⁶⁵ Courts are reluctant to interfere with parental decision-making, except in the most limited of circumstances.⁶⁶ However, laws exist to protect children from parental abuse and neglect.⁶⁷ Parents have also been held accountable for exploiting their children in a myriad of ways.⁶⁸ Indeed, children do not belong to their parents.⁶⁹ But the relationship between children and their parents remains a space where the state generally refuses to enter.⁷⁰

A. Evolution of Federal Child Protection Laws

Child welfare laws gained traction during the middle of the eighteenth century. A case often cited as creating the first child abuse laws in the country tells of a young girl who was physically abused. While Mary Ellen’s injuries and the neglect she suffered were gruesome, concerned community members were hard-pressed to find an existing legal mechanism to protect the child.⁷¹ A lawyer, the president of the New York Society for the Prevention of Cruelty to Animals, was able to argue successfully for her protection by citing animal welfare laws.⁷² This remained the norm for many years.⁷³

In the later parts of the nineteenth century, Progressive activists urged the government to do more to protect the nation’s children.⁷⁴ The “child saving movement” focused on numerous harms facing children, including poor health, abusive labor, delinquency, poverty, failed families, and institutionalization.⁷⁵ One realm of reformation focused on the need to “Americanize” children of immigrants so that they could become more a part of American communities and more accepting of American culture.⁷⁶ This same time period saw an influx in calls to create child welfare standards, focusing on setting minimum standards for child and maternal health, labor, and needy children.⁷⁷ As child welfare became more standardized, states were incentivized to create laws that both protected children and held adults accountable for the well-being of children under their care.⁷⁸

As the twentieth century got underway, conferences and calls for standardization grew.⁷⁹ Social welfare programs expanded under the New Deal and throughout World War II, providing funding to help create programs that allowed for these new reforms and standards to make their way into children’s home lives.⁸⁰ The Social Security Act of 1935, for example, included provisions (known as Title VI) geared at helping children in need.⁸¹ During this time period and the decades that followed, federal policies focused on providing education to young people, providing child care for needy families, restricting child labor, instituting nutrition programs, and promoting childhood vaccination.⁸²

During the Kennedy administration, these efforts continued. Congress developed the National Institute of Child Health and Human Development (“NICHD”), which focused on “conduct[ing] and coordinat[ing] national biomedical and social science research on child and maternal health and on physical, intellectual, and emotional development. NICHD has supported research on birth defects . . . stimulated the expansion of pediatrics as a medical specialty, and provided an official imprimatur to the idea that that adult health and behavior is shaped during childhood.”⁸³ This period also saw the inception and development of scientific research regarding “battered children,” and by 1966, “every state had passed legislation requiring better reporting and intervention in cases of child abuse.”⁸⁴ With these developments, parenting became a budding subject of interest in the public health sphere.

Federal legislation aimed at creating a uniform system of child protection can be traced to the Child Abuse Prevention and Treatment Act of 1974 (“CAPTA”).⁸⁵ This Act has been most recently reauthorized in 2019 through the Victims of Child Abuse Reauthorization Act of 2018.⁸⁶ Through federal grants, states are provided with funding to “improve child protective services, including mandatory reporting of child maltreatment, intake, screening, investigations, risk and safety assessments, case management and training.”⁸⁷ While funds provided through this Act represent some of the

earliest allocations of federal money to states to protect children, they currently make up a small part of the funding models states use to protect children.⁸⁸

The Adoption Assistance and Child Welfare Act of 1980 also marked a turning point in child welfare legislation in the United States.⁸⁹ This federal law focused on keeping families together, as many state agencies were separating families at alarming rates in efforts to resolve child welfare problems.⁹⁰ Now, many laws protecting children were focused not only on physical health, but on morality and culture as well. For example, the Children’s Television Act of 1990 regulated what TV stations could broadcast.⁹¹ During the Clinton years, efforts centered on ensuring parents of young children had access to high-quality childcare and family support.⁹² In his policy draft, Andrew Yarrow writes, “In her book It Takes a Village [] First Lady Hillary Clinton strongly reaffirmed the principle that society—and, by implication, government—bears a strong responsibility for child welfare and successful child development.”⁹³

In the late 1990s, as technology became ever more present, the government began creating laws giving parents more control over their children’s digital lives.⁹⁴ Yarrow writes:

The 1996 Telecommunications Act called for the broadcast, cable, and motion picture industries to develop voluntary ratings for TV programs based on their degree of violent or sexual content. In tandem, TV manufacturers were required by 2000 to install “V-chips” to enable parents to block programming. The 1998 Child Online Protection Act was one of several legislative efforts to restrict children’s access to web-based pornography, although courts have ruled the law unconstitutional. The Children’s Online Privacy Protection Acct [sic] (COPPA), which took effect in 2000, restricted commercial web sites from collecting personal information from children under 13.⁹⁵

These efforts to both standardize and unify the nation’s efforts toward enhancing child development continue today.⁹⁶

A common theme seen throughout these policy initiatives is the focus on empowering parents, first and foremost, to shape the welfare of their children, and to dictate the environment in which a child comes of age.⁹⁷ However, equally important in these schemes is the recognition that government, through its parens patriae model of child protection, also has a role to play.⁹⁸

This broad overview of child welfare policy includes policies focused on protecting children from abuse and neglect. Research overwhelmingly shows that our child welfare system, also referred to as a “family regulation system,”⁹⁹ disproportionately removes children from Black and Brown families.¹⁰⁰ Scholars have called for abolition of this family regulation system,¹⁰¹ arguing that it is irreparably broken and biased against families of color.¹⁰² While this Article will not discuss this important topic in detail, it supports a dismantling of current broken systems and suggests that a new system can be created that addresses the systemic bias of our current practices and incorporates the evolving needs of children online.¹⁰³

B. Early Court Decisions Regulating Parental Conduct

The courts have also interposed their own views on parental conduct. “Blackstone deemed ‘the most universal relation in nature . . . (to be) that between parent and child.’ ”¹⁰⁴ The parental rights arising from this relationship rest not only in law and precedent, but also “in nature and human instinct.”¹⁰⁵ Throughout our Nation’s history, the Supreme Court has held the rights of parents to be fundamental.¹⁰⁶ In the seminal case of Meyer v. Nebraska, decided in 1923, the Court “described the parental right as ‘the right to control,’ corresponding with the duty of a parent to educate their children.”¹⁰⁷ This understanding of parental rights was further expounded on two years later in Pierce v. Soc’y of the Sisters of the Holy Names of Jesus and Mary, holding that “[t]he child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”¹⁰⁸ Yet, the Court has also recognized that there are times when the state must curb parental authority to protect children.¹⁰⁹

In Prince v. Massachusetts, the Court noted that “the family itself is not beyond regulation in the public interest, as against a claim of religious liberty.”¹¹⁰ In Prince, a child sold religious magazines on the street, and her caregiver argued that this was permissible not only because it was at the direction of a person acting in loco parentis, but also that it was permissible as an exercise of both the child’s and the caregiver’s religious liberties. However, the Court noted the dangers streets pose to children, stating that “[p]arents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.”¹¹¹

II. Children’s Privacy In The Age of Social Media

Just as the state gives parents wide latitude in determining how to raise their children in the physical world, parents also regulate a child’s virtual world.¹¹² The cases cited above, which lay out the rights of parents but also highlight the role of the state in protecting children from parental overreach, have not yet been applied to parental oversharing on social media, nor have they been contemplated in discussions surrounding parental oversight (or lack of oversight) regarding their children’s social media use. Parents can allow their children practically unlimited access to the internet, can choose not to monitor their website viewing, and can allow their children to post on social media without seeing any legal repercussions.¹¹³

A. Sharenting and Beyond

Parents have almost unfettered discretion to share about their children in the virtual world much like they do in the brick-and-mortar world.¹¹⁴ Just as the state generally does not step in when a parent talks about their child with friends, schools, community members, or the public, the state does not step in when a parent posts about a child online.¹¹⁵ In almost all circumstances, this makes sense and is consistent with our democratic ideals of free speech and with our nation’s strong deference to parental autonomy.¹¹⁶ However, unlike a conversation, information shared by a parent online has the potential to last long into the future,¹¹⁷ possibly following a child into adulthood in ways not generally contemplated by parents or the public.¹¹⁸

Well-informed parents are generally best suited to decide how much to share online about their children.¹¹⁹ Parents who are aware of the risks of oversharing online will take steps to censor themselves, keeping private matters private and embarrassing stories about their children to themselves.¹²⁰ However, many parents are not aware of the risks that come alongside online sharing about children.¹²¹ Adults today are the first generation of parents to raise kids alongside social media—understanding the implications of growing up shared can be a complicated task for even the most well-educated parents—and many parents remain un- or underinformed about the risks that come when parents overshare online.¹²² A few informed parents choose to share about their children despite being fully aware of the risks.¹²³

While oversharenting is generally more of a public health concern that demands a public health response, oversharenting can also become a legal concern.¹²⁴ However, unlike typical forms of child endangerment, our legal system is currently ill-equipped to mount an appropriate legal response.

States rarely step in to regulate parental online sharing not only because parents generally have the substantive due process right to make most decisions for their children, but also because of a parent’s First Amendment right to free speech.¹²⁵ Just as courts rarely step in to restrain individuals from posting about matters online generally, courts would be reluctant to step in to restrain a parent from similar conduct.¹²⁶ The right to free speech is very broad, and its role in online sharing is consistent with the right as it is practiced in other contexts. Moreover, not only do individuals have strong free speech rights protecting words already spoken, but courts are also especially reluctant to put a prior restraint on parental speech not yet said.¹²⁷

This analysis is best begun by a brief overview of how courts hesitate to limit speech that has not yet been spoken. This area of law is often governed by what is known as the doctrine of prior restraint.¹²⁸ Under the doctrine, the state cannot prohibit “the publication of speech prior to its distribution, including orders to remove an expression that has already been published.”¹²⁹ There are exceptions to the prior restraint doctrine. As Ariel Bendor and Michal Tamir write, courts have approved prior restraints where

the speech is deemed obscene, where a prior restraint is needed to fulfill the right to a fair trial, where the expression is part of an unprotected commercial speech, where the speech was part of a continuing course of conduct, and where the expression could endanger national security in time of emergency. Courts have also approved prior restraint in order to protect privacy, in order to prevent employment discrimination, in order to protect property, in order to regulate public forums, and in order to prevent misleading commercial expressions.¹³⁰

In the context of sharenting, prior restraint would generally bar the state from prohibiting a parent from speaking in the virtual world about their child, much as it would do in the brick-and-mortar world.¹³¹ It would also stop the state from being able to require speech made by parents to be removed from social media, absent significant exigent circumstances.¹³²

Thus, one can understand why parents have such wide latitude to share online about their children. At least two constitutional principles are at play for parents—both their Fourteenth Amendment right to raise their children as they see fit and their First Amendment right to free speech.

Of course, there are times when even the Constitution will not protect parents who share online.¹³³ Generally, this is limited to criminal behavior. A parent sharing child sexual abuse material, for example, would receive no protection under the First or Fourteenth Amendments and could be prosecuted to the fullest extent of the law.¹³⁴ While the First Amendment allows individuals to create, view, and share pornographic material, it offers no protection to those who create or share child sexual exploitation material, nor does it protect those who view or share such illicit material.¹³⁵ And while the Fourteenth Amendment allows parents much discretion to raise their child as they see fit, they do not have the right to sexually abuse their child or to allow others to do so.¹³⁶

Every time a parent chooses to share online about their child, they make a decision that has the potential to have lasting consequences for their child.¹³⁷ When parents choose to share embarrassing information, for example, it could come to the child’s attention in unexpected ways.¹³⁸ A well-meaning friend of the parent could misinterpret the information and see it as a joke, later sharing it with the child in a public setting.¹³⁹ Children of the well-meaning friend could use their parent’s phone and see the content, later using it to tease or bully the child who was the subject of the embarrassing post.¹⁴⁰ If the information is shared publicly, the parent has no control over how the information is used in the future.¹⁴¹ If a parent shares the information “privately” with a limited audience, the parent may think they can control the spread of the information.¹⁴² But even when parents feel a sense of security by sharing on a “friends only” account or with a limited audience, such a comforting feeling may not be warranted as information can be saved and shared in many ways—coming back to hurt the child years into the future.¹⁴³

Online parental sharing geared toward building community may best be termed as sharenting to obtain social capital. Some parents “sharent” not only to build social capital within their network, but also in pursuit of financial capital, which requires them to entice and entertain a wider audience. In both instances, parents play the role of gatekeeper and gate-opener for their children’s personal information.¹⁴⁴ Parents act as gatekeepers when they protect a child’s personal information and as gate-openers when they share a child’s personal information.¹⁴⁵ When parents are building financial capital through sharing children’s content, parents are often moving beyond typical

sharenting¹⁴⁶ and the children become a commodity, one measured either via social capital or through financial gain.¹⁴⁷

B. How the U.S. Tries (and Fails) to Protect Children’s Privacy Online

There are many threats to children’s online privacy and governments have attempted to protect them in many ways. Individual states have enacted laws that protect children’s privacy in a handful of narrow situations, few of which pertain to sharenting.¹⁴⁸ The federal government has tried to enact legislation to protect children online, but most of these efforts have repeatedly failed to become law.¹⁴⁹ Internationally, the United Nations Committee on the Rights of the Child issued General Comment No. 25, Children’s Rights in Relation to the Digital Environment, to better recognize children’s rights and needed protections online.¹⁵⁰ And many countries have acted to protect children’s privacy through legislation that prohibits the sharing of children’s content in certain circumstances, even punishing offenders with jail time.¹⁵¹

In the United States, COPPA is the key piece of legislation aimed at protecting children online.¹⁵² However, this Act, signed into law in 1998 and updated in 2012, is woefully inadequate to protect children’s information online in the current atmosphere.¹⁵³ The internet is a very different place than it was in 1998 or 2012, and the Act does little to keep kids safe on the many websites they engage with today (such as Google and YouTube).¹⁵⁴ It does absolutely nothing to protect children when their parents are the ones acting to invade their privacy.¹⁵⁵ In fact, COPPA, like many state laws focused on children’s online privacy, places parents in the driver’s seat, tasking them with deciding who can collect, save, and disseminate a child’s information online.¹⁵⁶

COPPA sets forth requirements for online service providers to follow when their website is geared toward children under the age of thirteen.¹⁵⁷ If an online service provider seeks to engage this age group on its platform, the provider must take steps to protect the user’s personal information.¹⁵⁸ To that end, the law requires that any online provider directing its website to children or collecting and maintaining personal information about a child must:

(a) Provide notice on the website or online service of what information it collects from children, how it uses such information, and its disclosure practices for such information;¹⁵⁹

(b) Obtain verifiable parental consent prior to any collection, use, and/or disclosure of personal information from children;¹⁶⁰

(c) Provide a reasonable means for a parent to review the personal information collected from a child and to refuse to permit its further use or maintenance;¹⁶¹

(d) Not condition a child’s participation in a game, the offering of a prize, or another activity on the child disclosing more personal information than is reasonably necessary to participate in such activity;¹⁶² and

(e) Establish and maintain reasonable procedures to protect the confidentiality, security, and integrity of personal information collected from children.¹⁶³

While COPPA provides some meaningful protections for young people, it remains significantly flawed.¹⁶⁴ COPPA does not provide young people with a private cause of action against website operators who violate their privacy.¹⁶⁵ It does not provide young people with a meaningful way to request deletion of the information they have shared with third parties or the public.¹⁶⁶ COPPA provides young people with no protection from parents who overshare or allow others to overshare without the young person’s consent.¹⁶⁷ And it completely ignores the largest demographic of young

people online, teenagers, as it defines “child” as a person under the age of thirteen.¹⁶⁸

Ultimately, the federal government has failed to respect a young person’s online privacy and has failed to pass legislation holding online companies accountable when children are harmed due to or through online conduct. To fill the void left by lax federal laws in this space, many states have entered this space, attempting to create new laws that both recognize a child’s interest in online privacy and the state’s role in holding third parties accountable for online harm.¹⁶⁹ While these laws are an important step in protecting children online, they also have significant flaws of their own. One issue these laws present is the question of federal preemption. However,

[t]he Ninth Circuit recently held that the Children’s Online Privacy Protection Act, which gives the Federal Trade Commission authority to regulate the online collection of personal information from children under the age of 13, does not preempt consistent state law, potentially increasing the risk of class action litigation based on alleged COPPA violations.¹⁷⁰

The state law claims in Jones v. Google LLC provided families with a potential private cause of action for conduct that also violated COPPA.¹⁷¹

Another issue is that state laws aimed at protecting children online vary. Florida passed a law in 2024 that prohibits social media sites from allowing individuals under the age of fourteen to create accounts.¹⁷² It gives parents the authority to decide whether their fourteen- and fifteen-year-olds can use the social media platform.¹⁷³ Florida’s new law also “requires pornographic or sexually explicit websites to use age verification to prevent minors from accessing sites that are inappropriate for children.”¹⁷⁴ Like COPPA, most state laws place parents in control of their children’s personal information when it is shared online, whether by the young person or by others. Husch Blackwell LLP, a law firm that provides services to multiple types of businesses, offers a state privacy law tracker, which is regularly updated to provide overviews of new state laws that are being introduced to provide protections for young people online.¹⁷⁵ California, Connecticut, and Florida are three states with new laws specifically focused on children’s privacy.¹⁷⁶ Colorado, Hawaii, Illinois, Maryland, Minnesota, New Mexico, New York, Pennsylvania, South Carolina, Vermont, Virginia, and West Virginia all have or have had pending legislation in this arena.¹⁷⁷

Whether state or federal, most existing and proposed laws in this space recognize the central role of parents in controlling the upbringing of their children.¹⁷⁸ The laws give parents the ability to control the flow of information others share online about their kids,¹⁷⁹ require “verifiable parental consent,”¹⁸⁰ and provide parents with mechanisms to receive notice of how their children’s information is being used online.¹⁸¹ But these laws do not limit what parents share about their children online, nor do they limit how parents might harm their children through their own online conduct. They do not curtail parents’ rights at all and generally do not contemplate situations where parents may be the perpetrators violating the rights of their own children.¹⁸²

That said, the Illinois state legislature was the first state to recognize that there are times when a parent’s use of social media may present a risk of harm to children.¹⁸³ That law

provides that a vlogger who features a minor child in a specified amount of the vlogger’s content shared on an online platform must set aside a specified amount of gross earnings on the video content in a trust account to be preserved for the benefit of the minor upon reaching the age of majority.¹⁸⁴

The law applies to all influencers whose content features children in this way, not just to parents, but importantly does not provide a parental consent bypass mechanism, as some other legislation in the children’s privacy arena does. This law, like California’s Coogan Law, protects the earnings of child performers.¹⁸⁵ Other states are following suit,¹⁸⁶ and the Uniform Law Commission is studying the viability of a model law that other states can adopt to protect the earnings of child influencers.¹⁸⁷

One issue that has been underexplored in legal scholarship or court opinions is that of parental rights in the context of employment contracts governed by Coogan Law-type protections for minors. While parents generally can control the upbringing of their children and direct their involvement and relationships with others, a parent’s signature on an entertainment contract is not binding on the minor child.¹⁸⁸ Parents can be charged with a misdemeanor if they violate child labor laws governing a child’s working hours.¹⁸⁹ However, when the parent is the one setting the hours for a child to be engaged in video-taking activity for monetized sharenting, federal labor laws do not apply.¹⁹⁰

A literature review suggests there are few cases discussing the intersection of child abuse and neglect proceedings and the role of parents in managing a child’s entertainment career.¹⁹¹ However, the Court of Appeal for the Fourth District of California did have an opportunity to explore this space in Suleman v. Superior Court.¹⁹² Suleman is the mother to octuplets, born in 2009.¹⁹³ The family was the subject of much media attention—Suleman being colloquially known as “Octomom”¹⁹⁴—and has had multiple business opportunities stemming from their unique family. A stranger to the family, Paul Petersen, filed a petition seeking appointment of a guardian of the octuplets’ estates to protect the children’s financial interests.¹⁹⁵ The court found the allegations in the petition “insufficient to infringe on a parent’s

civil rights or to rebut the presumption under California law that a parent is competent to manage the finances of his or her children.”¹⁹⁶

The court considered the role of the guardianship court in providing for the safety and well-being of the children, recognizing that dependency proceedings also exist to look out for the “safety and well-being of children.”¹⁹⁷ But unlike a dependency proceeding, which is initiated by the state, a guardianship proceeding is initiated by a private party. Once a private party initiates such a proceeding, a court must determine if the parent can care for his or her own children without intervention.¹⁹⁸ If a parent lacks the capacity to do so, a court may appoint a guardian.¹⁹⁹ The court explained that “[t]he right to raise one’s own children as one sees fit is a matter of federal due process.”²⁰⁰ Citing Prince v. Massachusetts, it reiterated that

[i]t is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. And it is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter.²⁰¹

Suleman is notable for three reasons. First, it recognizes the intersection of child welfare law and guardianship matters relevant to children who engage with the entertainment industry. While the Suleman octuplets rose to fame before kid and mom-influencing took center stage on social media, third parties voiced concern about their well-being and sought out a mechanism to provide for their safety. Next, the case noted the importance of a parent’s right to control the upbringing of their children at the outset, not even providing the third party or the court leeway to enter the private space of family life as referenced in Prince. Lastly, the case highlights that, while a scheme did exist to investigate and remedy abuse or neglect, a third party such as Petersen lacked standing to initiate this particular investigation.²⁰²

This scheme is vastly different from the scheme most states use to initiate child abuse and neglect investigations. Inherent in child abuse and neglect reporting requirements is the general principle that anyone who “has reasonable cause to suspect” child abuse or neglect must report it, and some even designate certain third parties as mandatory reporters.²⁰³ While Petersen lacked standing under California’s guardianship laws to initiate an investigation as to Suleman’s failure to protect her children, all individuals have standing to call a state child abuse hotline. Moreover, while Petersen’s petition failed for lack of factual allegations, reasonable suspicion is all that is needed to make a hotline call—in fact, individuals are encouraged to report suspected abuse even when they personally do not have evidence of whether the abuse occurred or not.²⁰⁴ It is for the state to conduct the investigation and bring forth facts if they indeed exist.²⁰⁵

When someone in the United States believes that a parent is placing their child at risk of harm due to their sharenting practices, they may call the state’s child abuse and neglect hotline.²⁰⁶ However, the state hotline is unlikely to accept such a call, as the risks of oversharenting are unlikely to fall under state definitions of child abuse or neglect.²⁰⁷ Even if the hotline call is accepted, state investigators lack the training necessary to assess the risk of harm caused by the parent’s sharenting practices. Child welfare professionals lack the tools to provide family preservation services²⁰⁸ when parents lack information about the harms of oversharenting. And state attorneys, child welfare attorneys, and judges lack legal mechanisms to hold parents accountable when their over-sharing causes significant harm to their children.²⁰⁹

C. International Approaches to Protecting Children’s Online Privacy

With the exception of the United States, all United Nations member countries are parties to the United Nations Convention on the Rights of the Child.²¹⁰ As parties to this Convention, our international peer countries are also guided by General Comment No. 25 of the Committee on the Rights of the Child, on Children’s Rights in Relation to the Digital Environment.²¹¹ This document outlines the rights young people hold when engaging online and when others engage in online behavior that could impact them, such as parental online sharing.²¹² While sharenting is not mentioned by name, the document acknowledges the concept, discussing how a child’s right to privacy could be violated not only by individuals outside of the home, but also by those closest to them within the home, specifically including their own parents. Recognizing that children may at times need privacy from their parents, General Comment No. 25 states, “[t]hreats may also arise from children’s own activities and from the activities of family members, peers or others, for example, by parents sharing photographs online or a stranger sharing information about a child.”²¹³

Moreover, the international community recognizes that much of the information parents share online about their children may implicate data protection laws.²¹⁴ When the European Union first drafted the General Data Protection Regulation,²¹⁵ it considered the issue of parents (and others) sharing personal data on social media, and ultimately decided that such information, shared for personal or household purposes, would be excluded from regulation.²¹⁶ However, sharing for commercial purposes, such as what this Article considers “beyond sharenting,” would be regulated, as such behavior is considered using personal information for commercial purposes.²¹⁷ While in the United States such online disclosures are viewed as speech, the European Union views the content as a form of data.²¹⁸ As such, the European Union can regulate and protect such data in many ways the United States cannot. Additionally, the right to privacy in many countries is recognized as an important right that often must be balanced against another’s right to free speech.²¹⁹ This offers individuals outside of the United States greater privacy protections than they experience stateside.²²⁰

France has been a leader in recognizing a child’s right to privacy, even in contexts where that right conflicts with rights of parents.²²¹ In 2024, the French National Assembly voted unanimously to pass a law protecting the images of minors and providing some guidelines about how parents could share about their children online.²²² The law recognizes that children have a right to privacy and that parents generally are the ones tasked with protecting that right.²²³ It also provides that the parents shall, according to the child’s age and maturity, inform and include the child in these kinds of decisions to model and pass down healthy habits.²²⁴ However, it also allows for a judge to step in when parents, jointly or individually, do not adequately protect their child’s privacy right.²²⁵ When the “dissemination of the child’s image by his parents seriously harms the child’s dignity or moral integrity,” the judge is entitled to reassign the right to the child’s image to a concerned third party or the non-offending parent.²²⁶

III. A New Framework for Regulating Parental Online Conduct

The United States currently has sparse and scattered laws aimed at regulating parents’ online conduct. While some states appear to be stepping in to protect the earnings of children whose images generate financial profit online,²²⁷ they have yet to create comprehensive laws that address or remedy the harm parents can cause through online sharing for increased social capital, financial capital, or otherwise. Furthermore, few standards exist to delineate low-risk sharenting from higher-risk sharenting that exploits or risks exploiting children.²²⁸

Family preservation principles can and should be applied in cases of exploitative sharenting to both empower parents to make better decisions for their families and to protect of children from the harm of oversharing. This aligns with current systems aimed at curbing abuse and neglect, and it brings this practice into the protection child welfare systems can provide to families online. This requires an educated child welfare workforce, well-versed in the risks of exploitative sharenting but also able to guide families toward smarter online sharing practices without alienating ill-informed parents who may benefit from efforts to strengthen families.

A. Evolving Standards of Online Conduct to Regulate Abusive Sharenting

States have not precluded parents from online sharing except in the most limited of circumstances.²²⁹ Courts have occasionally been asked to limit parents from oversharing online in child custody and dependency cases, but judges are tasked with evaluating these cases without any uniform standards or expert agreement as to the limits of appropriate parental online conduct and conduct that is potentially harmful to children.²³⁰ Without such guidance, similarly situated cases may be adjudicated drastically differently from courtroom to courtroom, and many cases of children needing protection likely go unheard due to a lack of clear mechanisms for concerned community members or state actors to bring forth an investigation or suit against potentially offending parents.²³¹

Some would likely suggest that sharenting is a realm of family life where the state should not enter. However, there are many realms of family life that the state refused to enter in the past that it now, thankfully, wades into thoroughly. Like sharenting, parental discipline was once a realm of family life where the state refused to enter.²³² Legal corporal punishment and child abuse all fell into the same “bucket” of parental privilege two hundred years ago.²³³ It was only later that the state recognized that, at times, children needed protection from caregivers who used their parental privilege in an abusive manner.²³⁴ To protect children from child abuse, states needed to create a new system for community members to report abuse, for law enforcement to investigate the abuse, and for judges to adjudicate abuse in a manner that both recognized the rights of parents to discipline their children²³⁵ and the state’s right under parens patriae to protect children from online harm caused by their parents.

Though the courts and the legislature have not taken up the issue of exploitative sharenting in earnest yet, grassroots movements made up of concerned viewers have become a staple in forcing many of these influencers to wholly re-evaluate their content and the return on investment. As detailed in An Update on Our Family on HBO, online sleuths have investigated Myka and James Stauffer. For many years, the Stauffers featured their young children, including their adopted son Huxley, on their YouTube vlog, a channel with approximately 700,000 subscribers. Myka and James Stauffer shared information about their struggles caring for the young boy, who apparently had multiple medical and behavioral issues that the parents struggled to address adequately. Huxley began appearing on the channel less and less frequently until eventually, he disappeared entirely from the vlog. The vlog’s vocal audience expressed outrage. An online firestorm ensued, wherein viewers made both online and offline accusations that the parents had mistreated the young boy. Eventually, the parents announced their decision to “rehome” Huxley, causing even more public fury.

Just as the Mary Ellen story highlighted the need to better investigate and regulate parental discipline, the Stauffer story and HBO documentary might highlight the need to better investigate and regulate sharenting. Amateur internet sleuthing, for all the good it has done so far, is a limited resource and not the proper mechanism for creating long-lasting, equitable, systemic change. The greater public has limited resources for investigation, internal differences of opinion, and other shortcomings that render the apparatus unfit for this kind of regulation and for addressing the wide gray areas that exist within the practice of sharenting. Instead, legislators should be able to use the momentum of the movement and documentary to expand our existing legal framework to include a broader definition of abuse as was done with corporal punishment.

Statutes are in place to protect young people from online harm caused by third parties. For example, many states have cyberbullying laws criminalizing individuals who bully others through digital platforms.²³⁶ However, unlike the traditional children’s free speech jurisprudence, these laws do not contemplate situations where “the call is coming from inside the house”: situations where the bully is in control of the victim and their ability to assert their rights.²³⁷ Additionally, the federal government has comprehensive laws protecting individuals’ medical and educational records from unwanted third-party disclosure that rely on parental enforcement.²³⁸ And similarly, these laws do not contemplate situations where the parent is the one exposing these records.²³⁹

The evolution of our legal system’s approach to corporal punishment and child abuse did not develop in a vacuum or overnight. It evolved over time with an infusion of child safety experts, psychologists, and legal experts as policymakers to develop a uniform way to balance a parent’s right to control the upbringing of their children with the child’s need for safety.²⁴⁰ What started as a state-by-state approach has developed into a relatively uniform, federally mandated system of laws that ensure children are protected from abuse in every state.²⁴¹

B. A Path Forward

This section sets forth key principles for federal and state lawmakers to consider when attempting to protect minors from abusive forms of oversharenting.²⁴² It is critical to note at the outset that any attempt to limit parents’ rights to share on social media must be done with the strictness of scrutiny, as a parent’s right to determine how to raise their child is a fundamental right under the Due Process Clause of the Fourteenth Amendment.²⁴³ Most parents share responsibly, and most parents want to learn how to share in ways that keep their children safe from harm.²⁴⁴

Family Preservation

A key principle in child welfare policy is that the role of the state is to help strengthen families primarily, aiming to eliminate the need for removal in most cases that come to the attention of child abuse and neglect investigators.²⁴⁵ Today, child welfare investigators routinely make referrals to provide parents with housing and food assistance, referrals for drug and anger management treatment, and encourage parents to engage in counseling services to be better able to meet their children’s needs.²⁴⁶ The Family First Prevention Services Act of 2018 set forth the government’s strong goal of strengthening families through services provided directly to families, without the need for child welfare courts to intervene.²⁴⁷

Identifying Uniform Standards for What Constitutes Sharenting and What Constitutes Abusive Forms of Oversharenting

Currently, there are no federal- or state-sponsored organizations in the United States that have a primary aim of empowering parents to share more responsibly online,²⁴⁸ yet there are a multitude of organizations that seek to educate young people on how they can more safely use social media.²⁴⁹ Is it not ironic that, while parents often have little control over their teenager’s social media practices and complete control over their own, the primary focus of online safety organizations is helping parents to encourage their young people to share smarter instead of helping the parents make better choices about their own disclosures to keep their children safe online?²⁵⁰

Such organizations are needed. These organizations or working groups should be composed of child welfare professionals, attorneys, cybersecurity experts, law enforcement, mental health providers, public health experts, and young people who have come of age after having grown up shared. Working together, instead of in silos, these groups could begin to formulate sound public policies outlining what conduct constitutes appropriate sharenting, what is questionable sharenting or exists in a gray area, and what is exploitative and harmful sharenting. By bringing these separate groups together, each can offer its own unique expertise to ensure that policies are well-informed, grounded in child safety and social science principles, and able to withstand First Amendment and Due Process constitutional challenges.

Train and Equip Child Welfare Officials

Currently, state law enforcement and child welfare investigators are ill-equipped to understand and investigate exploitative sharenting. State agencies must train personnel to recognize harmful oversharenting and to educate parents about the risks of oversharenting. Most parents engage in online sharenting, so all who interact with families and have opportunities to provide parent education should have the knowledge and tools necessary to delineate whether a parent is simply engaging with their community via their sharenting or whether a parent is placing their child at risk through their disclosures. Parents could also be advised of the important role of privacy in childhood development.²⁵¹

Update Child Welfare Laws

Legislators, especially at the state level, must provide attorneys with tools to bring forth cases of exploitative and harmful oversharenting. Most parents who share on social media do so in ways that, as of 2026, appear minimally harmful to children²⁵² and may even provide important and meaningful connections for all individuals within the family unit.²⁵³ Even parents who share personal information, such as medical updates, likely do so to build family and community connections and wish to share in a way where the benefits to their child greatly outweigh any harm such sharing could cause.

However, the law must be prepared to regulate at the margins and to take action to protect children when parents engage in harmful online sharing practices. Like child removals for abuse or neglect, the state must show that reasonable efforts were made to prevent the need for removal, such as the initiation of the family preservation services discussed above. Any legal action taken against a parent for exploitative over-sharing must only come once parents have had the opportunity to learn about the harms that over-sharing can cause and a meaningful opportunity to adjust their sharing practices. Federal legislatures may wish to also address these issues in future child safety legislation, as children’s online safety has been identified by the U.S. Surgeon General Dr. Vivek Murthy, as a public health concern.²⁵⁴

Conclusion

The United States has failed to protect children from the harms caused by their parents’ online conduct. While parents have free speech protections and the right to raise their children as they see fit, they should not have legal protections that enable them to violate their children’s privacy in ways that could cause long-term harm to them as they come of age under the watchful eyes of social media.

Mia’s disclosure to Ms. Drake could have changed her life for the better and led her mother to get the financial and online safety help she needs, if only the child welfare laws were suitably tailored to protect her from the horrors that her mom, unwittingly or not, has subjected her to. These laws, written decades ago, are too focused on harms children face in their offline world and must be expanded to include harms that can be caused by online sharing.

Just as our views regarding child abuse evolved, our views regarding sharenting must evolve. The law can both protect parental autonomy and honor children’s privacy through a comprehensive and multidisciplinary new approach toward protecting children online that allows for thoughtful investigation, education, remediation, and prosecution of parents who use social media in ways that are significantly harmful to their children. This conduct, which falls beyond sharenting, is ripe for legal interventions that reset the balance between a parent’s right to share and a child’s right to online privacy and safety.

99 S. Cal. L. Rev. 559

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Stacey Barell Steinberg*

* Master Legal Skills Professor at the University of Florida Levin College of Law, Director of the Center on Children and Families, and Director of the Gator TeamChild Juvenile Law Clinic. Thank you to my research assistant, Megan Sirvent, for her valuable assistance on this Article, to Laura Rosenbury and Nancy Dowd for helping me conceptualize my ideas as I set out to explore this topic, to Interim Dean Merritt McAlister for her generous funding supporting this work, and to Rachel Mason for early discussions that helped me propel my ideas forward. Thank you to Claire Bessant, LeAnn Campbell, Naomi Cahn, Christopher Hampson, Lindsay Hanson, Thomas Haley, Lea Johnston, Lyrissa Lidsky, and Peter Molk for their invaluable feedback on early drafts. Thank you also to the Vermont Law Review, the 5Rights Foundation, and the George Washington University Center for Innovation for the opportunity to discuss the ideas contained within this Article to each respective audience. Thank you to the editors at the Southern California Law Review, particularly Jonathan Scher, Kelcey Sholl, and Yixin Wang.

Regulating Robotaxis

April 2026April 2026Bryant Walker Smith* & Matthew T. Wansley†

In several sunbelt cities, commercial robotaxi service has arrived. The leading robotaxi company is providing over 400,000 trips per week. The industry claims that robotaxis will save lives and provide convenient and affordable mobility. Critics counter that they will increase congestion, undermine transit, and subject the public to ubiquitous surveillance. We argue that the social impact of robotaxis depends on how they are regulated. We emphasize two points missing from the debate. First, some of the benefits of robotaxis may be political rather than technological—some longstanding public policy goals may become viable in a robotaxi world. Second, letting one private company dominate the transportation system risks monopoly abuse—and regulators can act now to prevent it.

In this Article, we offer a plan to regulate robotaxis. Carefully crafted externality regulation can address pollution, congestion, wear-and-tear on infrastructure, and privacy risks while minimizing distortions in choices between travel modes. Regulators can promote competition by permitting open entry, banning lock-in contracts, and enabling one-stop access to competing networks. And they can protect riders even if competition fails by mandating that fares be transparent and rider-neutral and requiring that robotaxi companies maintain a fleet sufficient for emergencies. Policymakers should take advantage of robotaxi deployment to reimagine the transportation system—liberate land from the tyranny of parking, refocus mass transit investments on high-throughput routes, and expand mobility for people with low incomes and people with disabilities.

Introduction

This Article is about “robotaxis”—motor vehicles without human drivers that are available on demand to paying customers. For nearly a century, the personal motor vehicle has dominated the American conception of travel. Given this, it is easy to forget that we humans have always transported ourselves, our goods, and our messages using a mix of travel modes. Even motorists, after all, become pedestrians after they park. And since the average household vehicle has an occupancy of only 1.5 persons,¹ it is also easy to overlook that many of these other modes were and are shared services—carriages, steamboats, trains, streetcars, buses, and taxis—in which the user is not the operator.²

Today, however, “automated vehicle” has become nearly synonymous with “robotaxi.” This is largely because of automated driving’s market leader in the United States, Waymo, as well as its competitors in China. Waymo currently deploys its automated vehicles only in fleets. In Atlanta, Austin, San Francisco, Phoenix, Los Angeles, and Miami, anyone with a smartphone can hail a ride in a robotaxi—and the company promises more cities are coming soon.³ In parts of these cities, Waymo’s vehicles are ubiquitous: recently, the Waymo carrying one of us was unable to change lanes because the Waymo next to it refused to let it in—and there were even more Waymos ahead and behind.

Will the robotaxi come to supplant the personal motor vehicle as the twenty-first century’s defining local travel mode? Maybe.

Automated driving has potential advantages. Automated driving might be safer than conventional driving.⁴ People who are unable to drive may be able to ride. Passengers in automated vehicles could use their time more productively than drivers of conventional vehicles.⁵ But these potential advantages apply when comparing many kinds of automated vehicles with conventional vehicles. When comparing robotaxis with personal automated vehicles,⁶ they are less relevant. The case for robotaxis isn’t just that they are automated.

Should the robotaxi eclipse the personal car’s dominance? We answer this question with a qualified yes. There are compelling reasons to welcome robotaxis.

First, robotaxis could improve road safety even more than personal automated vehicles. This is because robotaxi fleets are likely to be and remain significantly newer than motor vehicles generally. The mean age of vehicles in the United States today is over twelve years—and growing.⁷ Simply shifting trips to newer conventional vehicles could have a significant safety benefit.⁸ Shifting them to automated vehicles that are carefully maintained and regularly replaced could have an even greater benefit.

Second, robotaxis could improve accessibility—at least in some senses of the term. They could compete on time and cost, for both riders and system operators, with suburban and rural mass transit that has low ridership and long headways. They could better serve some people who are unable to drive because of income⁹ or disability.¹⁰ They might be more reliable than an old car in frequent need of repair.

Third, careful integration of robotaxis might unlock smarter uses of streets and city centers. Robotaxis might obviate the demand for much on-street parking, and that space might in turn be used not only for the much greater queuing zones that pickup and drop-off would require but also for sidewalks, bicycle lanes, and parklets. Robotaxis might also reduce demand for much off-street parking, and that space might in turn be used not only for robotaxi queues and depots but also for more parks, homes, and businesses.

Nonetheless, there are also reasons for caution—and therefore for careful and proactive regulation.

First, robotaxis are likely to compete not only with personal automobiles but also with walking, biking, and communal transit. The history of Uber and Lyft—which are often called Transportation Network Companies (“TNCs”)—is illustrative. As we discuss below, one of the biggest policy challenges is approaching automated driving in a way that appropriately reflects both any advantages it ultimately offers vis-à-vis conventional driving and any disadvantages it presents vis-à-vis more active and communal modes of travel.

Second, reducing the costs of travel, in money and time, may encourage more sprawl and more automotive travel. These could, in turn, create even more local, regional, and global pollution. It is important to remember that there is no such thing as a “zero-emission vehicle.” Even electric vehicles need to get their power from somewhere. And, although it is true that electric vehicles with no tailpipe have no “tailpipe emissions,” they are sources of other pollution. Tires, for example, wear out through contact with the road surface, and this wear is a major source of microplastics.¹¹

Third, these and other externalities are likely to be borne by people other than robotaxi developers, operators, and users. A disabled person who needs assistance boarding a conventional vehicle could be harmed if private robotaxi service replaces mass transit that is subject to more stringent accessibility requirements. People around the world could see their food become more expensive if even greater sprawl further reduces arable land. People who are conducting their lives in public may be subject to greater public and private surveillance if automated driving companies use or share their sensor data for purposes other than driving.¹² Secluded door-to-door trips may also reduce the random social interactions that are important to individual and community vitality.

What we have said about robotaxis so far should be familiar. In this Article, we emphasize two points that are new—one an underappreciated reason to welcome robotaxis, the other an underappreciated reason for concern.

Robotaxis, at least at this moment, could be a political expedient for implementing policies that are otherwise viewed as politically challenging.¹³ The problems of America’s reliance on the personal motor vehicle are well-known: crash deaths and injuries, pollution, and sprawl, among others. Policy solutions are also well-known: consistent automated enforcement of safety-relevant traffic rules, insurance minimums that reflect the true cost of injury, taxes on fueling and charging that capture the externalities of energy consumption, parking rates that account for the value of the land used, and so forth. But implementing these policies for conventional vehicles, drivers, and driving may not sit well with the ninety-two percent of American households that have a motor vehicle.¹⁴

In contrast, automated driving is not yet politically entrenched.¹⁵ Automated vehicles have so far been deployed only in fleets, which facilitates regulation. Fleet owners are better able to comply with complex rules than individual vehicle owners, and regulators may face less (or at least a different kind of) political resistance when they impose burdens on fleet owners than when they impose similar burdens on tens of millions of individual vehicle owners. This partly explains why the U.S. Department of Transportation and states such as California have demanded much more from automated driving developers than they have from ordinary noncommercial vehicle owners and drivers, such as expanded incident reporting at the federal and state levels and higher insurance minimums at the state level.¹⁶

But this moment is fleeting: if robotaxis and automated driving features become more widespread and popular, imposing new requirements will become correspondingly more difficult. This is a lesson that many cities still remember from the early and ultimately successful efforts of Uber to change the facts on the ground before governments could enforce existing rules or devise new ones.¹⁷

And that observation brings us to our new reason for concern. If robotaxis take off, a small number of corporations may come to control large parts of the transportation system. Robotaxi companies benefit from economies of scale and network effects, so the robotaxi market may be highly concentrated. That’s what we’ve seen in the TNC market.¹⁸ In most U.S. cities, Uber and Lyft have formed a duopoly.¹⁹ They cannot abuse their market power too much because they face competition from other travel modes. If they jack up their fares, many travelers can take a taxi or transit or just drive their own vehicle. But if robotaxis put other modes of transportation out of business, the risk of monopoly abuse will rise. In the absence of regulation, these companies’ interests may not be aligned with the public good.

In this Article, we propose a plan to regulate robotaxis that takes advantage of the opportunity they present to redesign mobility while protecting the public from concentrated private power.

There is a robust literature on the law of automated driving, but most of it focuses on tort liability²⁰ and safety regulation.²¹ There has been little discussion of the other regulatory issues that policymakers must confront.²² But some states are already acting. California has developed and implemented robotaxi-specific regulations, and Arizona has applied its pre-existing ridehailing regulations to robotaxis.²³ We consider both of these approaches to illuminate the choices these states have made and to propose reforms relevant to our analysis.

Our argument proceeds in four Parts.

In Part I, we explain what we know about robotaxis so far—the technologies, the economics, the prospects for wider adoption, and some of the layers of regulation that already apply to robotaxi service.

In Part II, we discuss externality regulation. The deployment of robotaxis could contribute to emissions, wear-and-tear on infrastructure, congestion, and privacy loss. But robotaxis could also reduce the social costs of transportation relative to personal motor vehicles. And it may be easier—both practically and politically—to regulate a few robotaxi companies than to regulate many drivers. Policymakers should take advantage of the ease of regulating robotaxis but take care not to create distortions that push riders to other modes of travel. We consider an electric vehicle mandate, a vehicle miles traveled (“VMT”) tax, congestion pricing, and restrictions on the use of robotaxi sensor data.

In Part III, we turn to rider protection. We start with the premise that the best way to protect riders is to encourage competition. If robotaxi companies compete in a carefully regulated market, riders could get lower fares, better service, and the fruits of more innovation. We also emphasize a less widely appreciated benefit of competition in robotaxis: more independent development of automated driving technologies could ultimately lead to the integration of redundant systems that are safer than systems developed by just one company. We argue that policymakers should promote competition by permitting open entry, banning lock-in contracts, and enabling one-stop access to competing networks.

We recognize, though, that even these policies may not prevent one company from dominating the market because the economies of scale and network effects favor concentration. And that dominance will take on additional social importance if robotaxis start to replace other modes of travel. We therefore propose a different set of policies to preserve rider autonomy even in a concentrated market. Regulators should mandate that robotaxi fares be transparent and rider-neutral. They should also require that, at some point, robotaxi companies individually or collectively are able to serve transportation demand in an emergency. We hope that by ensuring the public will be protected even in a concentrated robotaxi market policymakers can reduce the need for—and the attendant individual and social costs of—personal motor vehicle ownership.

Wide adoption of robotaxis could create the opportunity to redesign the transportation system. In Part IV, we offer some tentative suggestions on what this might look like. We envision a world where cities can reclaim space currently used for parking, giving more space to cyclists and pedestrians and liberating land for housing or other development. Cities can also refocus their investments in mass transit, replacing low-throughput routes and spending scarce dollars on high-throughput routes. The deployment of robotaxis should also create the opportunity to expand access. We think that carefully crafted subsidies can improve mobility for people with low incomes. And we explain how the National Highway Traffic Safety Administration (“NHTSA”) can use its authority over vehicle safety standards to encourage the development of automated vehicles that are accessible for people with disabilities. But we take a more skeptical approach to place-based subsidies. We don’t want robotaxis to usher in a new era of sprawl.

I. Robotaxis Today

Robotaxis are moving from R&D projects to commercial service. In this Part, we explain what is currently known about robotaxis. First, we introduce some of the technologies that make robotaxis possible. Second, we describe

the structure of the robotaxi market and the economics of operating a robotaxi service. Third, we consider the prospects for wider adoption. Fourth, we explain some of the layers of regulation that already apply to robotaxis.

A. Technologies

Robotaxis are automated vehicles deployed for commercial passenger service.²⁴ A robotaxi is equipped with an automated driving system (“ADS”)—a combination of sensors, computers, and software that can together perform the dynamic driving task.²⁵ To oversimplify: every robotaxi in a company’s fleet is equipped with a copy of the same ADS—the same kind of sensors, the same kind of computers, and the same software.²⁶ So in a sense, every robotaxi deployed by one company has the same driver.²⁷

Each ADS has a unique operational design domain (“ODD”)—a set of specific environmental, geographic, and roadway conditions in which it is intended to operate.²⁸ Most ADSs on the road in the United States today function only in geofenced regions in a small number of warm-weather cities, though Chinese cities such as Beijing have both snow and robotaxis.²⁹ Even within those geofenced regions, ADSs may be restricted from driving

on specific roads. Waymo’s robotaxis, for example, aren’t taking many paying passengers on freeways.³⁰

Unusual traffic situations—referred to as edge or corner cases—continue to challenge ADSs.³¹ Robotaxis have fallen into a construction pit,³² gotten stuck in a flooded road,³³ parked in prohibited areas,³⁴ and made an illegal U-turn at a sobriety checkpoint.³⁵

The companies developing automated driving technologies are designing their systems in different ways. Some companies use a suite of sensors that includes lidar, radar, and cameras.³⁶ Others purport to rely on cameras alone.³⁷ Some companies create high-definition digital maps to help their systems understand the data they receive from the vehicle’s sensors.³⁸ Others have designed their system to learn about their environment largely from the data they receive in real time with only a comparatively basic map.³⁹

Companies also differ in how they structure their software. Some ADSs are modular, with different subsystems performing discrete tasks. For example, a modular ADS might include subsystems for localization, perception, behavior prediction, planning, and actuation.⁴⁰ Each of these subsystems may or may not incorporate machine learning. Other ADSs, by contrast, have a “pure end-to-end” architecture. In these systems, a machine learning model takes in sensor data and puts out actuation commands.⁴¹ Some companies are combining these approaches.⁴² Many deployments are likely to involve bounded flexibility—like putting a soft duffle bag inside a hardshell suitcase.

An ADS can create a digital record of its driving.⁴³ This record can show the people, animals, and objects detected by the ADS’s sensors and the commands sent by its software, and the movement of nearby people and objects.⁴⁴ Most robotaxis are also equipped with interior and exterior video cameras, which can record both passengers and the vehicle’s surroundings.⁴⁵ An ADS generates and processes an immense amount of data, and retaining all these data in their raw form may be impractical. Companies generally decide which data to collect, transmit, and retain. In the absence of a legal requirement, they may make pragmatic or strategic decisions about data retention, especially as they scale their operations.

The data that an ADS collects can feed back into development. When a robotaxi encounters a scenario of concern, the ADS can be tweaked to handle it better next time.⁴⁶ The developer can test this update in computer simulations, on closed-course tracks, and then on public roads.⁴⁷ Progress isn’t always linear.⁴⁸ Tweaks can introduce new errors.⁴⁹ But over time, a system’s performance should improve, and its ODD should expand.

In the 2010s, the industry was focused on R&D.⁵⁰ When companies tested automated vehicles on public roads, they kept a “safety driver” behind the wheel.⁵¹ Near the end of the decade, some companies moved to testing without these safety drivers.⁵² And in the past few years, some companies have started to operate commercial services.⁵³

These deployments generally rely on support from human agents located in remote centers.⁵⁴ Developers take a variety of approaches to remote facilitation, ranging from mere remote assistance to actual remote driving.⁵⁵ Remote agents might communicate with passengers, suggest a path for the ADS when the robotaxi gets stuck, call for assistance in an emergency, or interact with first responders.⁵⁶ In practice, remote facilitation is frequent. For example, in late 2023, one company’s robotaxis required assistance every four to five miles.⁵⁷

Automated driving has the potential to improve road safety. Waymo’s researchers published a study in a peer-reviewed journal finding that its vehicles are involved in significantly fewer crashes that involve an injury or an airbag deployment than conventional vehicles in comparable ODDs.⁵⁸ The study is based on publicly available crash reports that Waymo submitted to NHTSA.⁵⁹ Although the data are self-reported and the conventional vehicle crash rate baselines are contestable, we don’t doubt the direction of the results with respect to routine driving.

An earlier study by independent researchers found that Waymo’s crash rate in San Francisco was comparable to the reported crash rates of TNC drivers in the city.⁶⁰ This is also an encouraging result because the crashes involving automated vehicles had to be reported by law while crashes involving only conventional vehicles are often not reported.⁶¹ It is too early to draw conclusions about fatal crashes, though. In the United States, there are about 1.33 fatal collisions for about every 100 million vehicle miles traveled.⁶² Waymo has only traveled about 200 million miles.⁶³

B. Economics

We are beginning to see the structure of the nascent automated driving market generally and the nascent robotaxi market specifically. And we can make educated guesses about the basic economics of a robotaxi service.

Market Structure

There are companies developing automated driving technologies in many parts of the world. These companies include automakers such as Mercedes, Tesla, and Volkswagen; automotive suppliers such as Bosch, Mobileye, and Qualcomm; informational technology companies such as Alphabet, Amazon, Baidu, and Huawei; and a variety of automated-driving-specific firms such as May Mobility, Pony.AI, Wayve, and WeRide. It is important not to discount efforts abroad, particularly from companies in

China that are active at home and could soon be competing with U.S. companies in other parts of the world.⁶⁴

“[A]utomated driving encompasses a wide range of technologies, applications of those technologies, business models for those applications, and participants in those business models.”⁶⁵ Robotaxis are just one application. Some companies are developing ADSs for personal motor vehicles or for use in low-speed shuttles. Other companies are aiming to automate trucking, delivery, mining, farming, and military vehicles.

We focus on three U.S.-based companies—Waymo, Zoox, and Tesla—that are developing robotaxis and are backed by three of the most valuable corporations in the world. Waymo is a subsidiary of Alphabet, the parent company of Google. Zoox is a subsidiary of Amazon. Tesla we expect you’ve heard of.

For now, Waymo dominates the robotaxi industry. It is providing commercial robotaxi service in Atlanta, Austin, Los Angeles, Phoenix, San Francisco, and Miami (as of February 2026).⁶⁶ And it is planning to provide commercial service in other major U.S. metropolitan areas.⁶⁷ Waymo’s robotaxis are already competing with Uber and Lyft. In late 2025, Waymo had a twenty-two percent share of the TNC market for trips with an origin and destination within the city limits of San Francisco.⁶⁸

Zoox is testing robotaxis in San Francisco, Las Vegas, and Miami.⁶⁹ The company recently started a commercial service in Las Vegas.⁷⁰

Tesla claims it is developing robotaxis.⁷¹ But all Tesla has produced is a system that it dizzyingly calls “Full Self-Driving (Supervised),”⁷² which needs a driver to keep their hands on the wheel and their eyes on the road at all times.⁷³ It is an ADS in aspiration but not in function.⁷⁴ In communications with regulators, Tesla continues to take the position that “Full Self-Driving” is just a driver assistance system.⁷⁵ In May 2025, Tesla announced the “launch” of a “robotaxi” service in Austin, Texas.⁷⁶ But each of the vehicles generally has a Tesla employee who is seated in the driver’s seat or passenger seat, monitoring the roadway and able to intervene.⁷⁷

It is important to recognize that, although each of these companies has primarily emphasized robotaxi services, their underlying technologies could be adapted for a variety of other applications, including motor vehicles that are exclusively used by their owners.

The robotaxi companies are taking different approaches to vertical integration. Each company is developing its own ADS software. But they aren’t all building vehicles. Waymo has purchased its base vehicles from third parties—Chrysler minivans, Jaguar SUVs, Zeekr minivans, and Hyundai SUVs—and then modified them extensively in its own facilities.⁷⁸ Zoox built its own distinctive, bidirectional vehicle in which passengers face each other.⁷⁹ Tesla has unveiled a more conventionally designed prototype called the Cybercab, but in Austin it uses slightly modified versions of its production vehicles.⁸⁰

The companies are also experimenting with different models for service delivery.⁸¹ In Los Angeles, San Francisco, and Miami, Waymo’s robotaxis can be hailed only on the Waymo app.⁸² In Phoenix, they can be hailed on the Waymo app or the Uber app.⁸³ And in Atlanta and Austin, they can be hailed only on the Uber app.⁸⁴ In those cities, Uber manages “vehicle cleaning, repair, and other general depot operations” while Waymo manages roadside assistance.⁸⁵ Waymo has also suggested it might license its ADS to third parties.⁸⁶

Tesla has floated the idea of selling automated vehicles to individuals who would then make them available as robotaxis on a network managed by Tesla.⁸⁷ (If those vehicles were as automated as Tesla has promised, then those individuals could presumably make them available on other networks as well.) This business model has some precedent. Uber lets personal motor vehicle owners use their vehicles to provide rides to passengers.⁸⁸ Turo lets personal motor vehicle owners rent their vehicles to drivers.⁸⁹ And Zipcar lets members have short-term use of fleet vehicles.⁹⁰

A startup recently announced that it would sell automated vehicles to individuals⁹¹—though of course it is not the first company to make this claim.⁹²

Cost Structure

The most important cost of operating a robotaxi service is the fixed, upfront cost of developing a safe and functional ADS. Each of the major robotaxi companies has already spent billions on engineering and testing over the last decade.⁹³ As an ADS stabilizes, engineering costs may decline. But a mature ADS will still need to be updated and refined.⁹⁴ The built environment and road user behavior will continue to change, and robotaxis will continue to encounter novel edge cases.

The variable costs of a robotaxi service can be divided into market, vehicle, and mile costs. For each new market a company enters, it must map the new territory, ensure sufficient remote assistance capacity, and arrange facilities for storing, charging, cleaning, and maintaining its vehicles.⁹⁵ For each new vehicle it assembles, it needs to buy the vehicle platform, the sensors, and the computers. For each new mile its robotaxis drive, it spends more on remote labor, fuel or electricity, cleaning, maintenance, and (indirectly) insurance.

Compared to traditional TNCs, one potential cost advantage of a robotaxi is labor. Much of the cost of an Uber ride is driver pay.⁹⁶ Taking the driver out of a taxi could make transportation radically cheaper. But robotaxis will compete against Uber and Lyft drivers who, at least in the United States, might earn less than minimum wage to drive and maintain rather ordinary vehicles (and, notably, to load and unload luggage that their customers may not want or be able to lift).⁹⁷

So, for now, this labor cost saving is hypothetical.⁹⁸ The robotaxi companies need humans to help with charging, cleaning, and maintenance. And they rely critically on humans who provide remote assistance to their vehicles, to their passengers, or to law enforcement—and, occasionally, to physically retrieve vehicles when they get stuck.⁹⁹ As of November 2023, one robotaxi company was employing 1.5 operations workers per vehicle.¹⁰⁰

One cost disadvantage of a robotaxi is the robotaxi itself: the vehicle platform, its sensors, and its computers. Waymo’s co-CEO has said that the equipment on its robotaxis can cost as much as $100,000.¹⁰¹ But Baidu, one of Waymo’s Chinese competitors has said that its robotaxis cost less than

$30,000 to manufacture—including both the vehicle platform and the ADS.¹⁰²

Another cost disadvantage is real estate. A robotaxi company internalizes the cost of its vehicles driving to and from its depots and service facilities, so it may want to locate them close to the center of travel demand. That’s usually a place where land isn’t cheap. In contrast, a traditional TNC’s drivers or vehicle owners bear these costs—including when they involve significant commutes at the beginning and end of a workday.

In theory, robotaxis can benefit from powerful economies of scale. Once an ADS is acceptably safe and functional, it can be deployed in similar ODDs in metropolitan areas around the country with some adaptations for local driving conditions. However, the significant costs of standing up a new market—the depots, service facilities, and local coordination—may limit early deployments to metropolitan areas with large populations.¹⁰³

The path to profitability will require changes to the cost structure. The cost of components—sensors, computers, and vehicle hardware—needs to fall. Waymo already is moving to replace its Jaguars with Zeekrs.¹⁰⁴ The ratio of operations staff to revenue-generating vehicles needs to fall too. That will mean improving the ADS’s performance to reduce the frequency of incidents where remote assistants need to intervene. And it will likely mean automating parts of robotaxi servicing—charging, cleaning, and maintenance.¹⁰⁵ How much costs can fall is an open question.

Deployment

A profit-maximizing robotaxi company will follow two principles for deployment. First, maximize revenue-generating opportunities (for which miles is an imperfect proxy). Second, minimize non-revenue-generating—or “deadheading”—miles. All else equal, a robotaxi company makes more money when a robotaxi is carrying passengers than when it is parked in a depot. And the company probably loses less money when a robotaxi is parked in a depot than when it is deadheading. A parked robotaxi takes up space in the depot. But a deadheading robotaxi increases charging, cleaning, maintenance, and insurance costs.¹⁰⁶

These two principles explain why robotaxis (and taxis and TNCs) are deployed in areas with high travel demand. In a high demand area, when one trip ends, the next rider is nearby. There is less deadheading between rides. Robotaxis benefit from network effects. A network with a higher volume of trip requests means fewer deadheading miles between rides. Network effects explain why robotaxis are deployed in large metropolitan areas.¹⁰⁷ And they explain why downtowns are generally more appealing markets than outlying areas.¹⁰⁸ Even in San Francisco—one of the densest cities in the country—Waymo’s robotaxis are still deadheading over 40% of the time.¹⁰⁹

There are other factors beyond travel demand that affect where robotaxis will be deployed. Robotaxis are limited by their ADS’s ODD. If an ADS isn’t capable of functioning at higher speeds, the robotaxis that use it might not serve neighborhoods where many trips require highway driving. Robotaxi companies may also prefer to deploy in wealthy neighborhoods simply because their wealthy residents have a higher willingness to pay. But again, the analysis is complicated. If wealthy residents are more likely to own a car, they may be less interested in a robotaxi ride. Families with young children (or simply with a lot to carry or store in a vehicle) present another potential challenge to—or possibly opportunity for—robotaxis.

The same principles that explain where robotaxis will be deployed also explain when they will be deployed. In most cities, travel demand peaks on weekdays in the morning and evening rush hours. A fleet of vehicles that can serve peak rush hour demand will leave some vehicles sitting idle in the midday hours and most vehicles sitting idle overnight. Robotaxi companies will likely try to smooth out travel demand by charging more in rush hour, as Uber and Lyft do with surge pricing.¹¹⁰ They might also use their vehicles for package delivery or other tasks in periods of low demand.¹¹¹ But a profit-maximizing company’s optimal fleet size is likely lower than a fleet that would completely serve peak demand—a point that influences our analysis below.¹¹²

Robotaxis might be able to serve more of a city’s transportation demand with a smaller fleet than traditional taxis or TNCs can.¹¹³ The effect will be amplified if some of the city’s residents decide to give up their personal motor vehicles for robotaxis. Personal motor vehicles have a very low utilization rate—they sit in driveways, on streets, or in parking facilities for most of the day. A profit-maximizing robotaxi company will aim for high utilization.¹¹⁴ A smaller fleet serving the same travel demand could mean a lower environmental impact.¹¹⁵

One open question in robotaxi deployment is how often riders will be interested in being matched with strangers to share rides.¹¹⁶ In principle, sharing all or part of a trip is a win-win. Riders pay a lower fare. Robotaxi companies serve two revenue-generating riders at the same cost. The challenge of ridesharing is it requires very high travel demand. The routing algorithm needs to find two riders traveling along similar routes at roughly the same time. TNCs have experimented with ridesharing programs such as UberPool and LyftLine. But the results have been disappointing. In 2023, Lyft—not coincidentally the company with the smaller network—mostly gave up on shared rides.¹¹⁷

Robotaxi companies may have more success with sharing rides if they push fares low enough to grow the robotaxi market beyond the size of the TNC market. Today most commuters cannot afford to use TNCs for their daily trips to and from work. But the combination of automation and sharing could change these economics. And during peak periods, there are many potential riders coming from similar origin points heading to the same destination at the same time.¹¹⁸

Companies could also encourage shared rides by introducing new vehicle forms. As we mentioned above, in Zoox’s robotaxis, passengers face each other.¹¹⁹ Another possibility is compartmentalized vehicles, which might appeal to riders looking for safety and privacy.

Unfortunately, there’s a tradeoff between market concentration and shared rides. The more robotaxi companies competing for riders, the less likely that any two riders will be on the same network requesting a ride along the same route at roughly the same time. But it might be possible for multiple companies’ robotaxis to be deployed on the same network—or so we will argue in Part III.

C. Potential for Wider Adoption

The common vision for robotaxis is that they will not merely replace human-driven taxis, but that they will dramatically expand the market for

taxi-like services in large part by replacing trips in personal motor vehicles.¹²⁰ But some companies are still committed to the traditional automotive business model.

The demise of Cruise, a robotaxi startup acquired by General Motors, is instructive. As we explain more below, after a 2023 incident in which the company misled the public by misleading reporters and regulators,¹²¹ Cruise suspended its US robotaxi service. A year later, GM folded Cruise into its internal efforts to develop driver assistance features for the conventional vehicles it produces. In other words, GM has reverted to its traditional model of principally selling cars rather than rides.

GM is hardly alone in embracing this traditional approach. Mercedes already offers an automated driving feature—for certain freeways in certain conditions—on two of its premium models.¹²² Many others are pursuing similar features. This traditional business model is understandable, especially if automakers ultimately decide to sell not only the vehicles but also subscriptions to use the automated driving features.¹²³ After all, like today’s robotaxis, these features might also depend on substantial digital and human infrastructure behind the curtain.

For the robotaxi business model to compete, automated driving technologies need to mature. As we discussed above, robotaxis need to become cheaper. And there are other obstacles.

First, vehicle ownership generally entails significant fixed costs (to purchase or lease the vehicle and to insure it) and either objectively or subjectively smaller variable costs to then operate that vehicle (to fill it or charge it).¹²⁴ Given this, those who own a car that they are unable or unwilling to part with are likely to compare the purchase price of a robotaxi trip with the marginal cost of a trip in their individually owned vehicle.

Second, for the reasons we described above, robotaxis will face competition not only from personal motor vehicles but also from personal automated vehicles. Automated driving will not be limited to robotaxis.

Third, many American car owners—and particularly families with children—use their cars as an extension of their homes. Some people literally live in their cars.¹²⁵ Many rely on them as mobile storage lockers for themselves and their families—for sports equipment, booster seats, diapers, mobility aids, and stuff that they want on hand or simply cannot keep elsewhere.¹²⁶ Many also treat their vehicles as public displays or private retreats that are decorated and provisioned for their personal functional and aesthetic sensibilities.¹²⁷

Fourth, many Americans see their personal motor vehicle as giving them autonomy. What happens if you give up your car and the robotaxi company jacks up its prices? Or what if there’s an earthquake, and you need to evacuate? We will explore these questions in Part III. For now, it suffices to say that how widely robotaxis will be adopted is an open question.

D. Regulation

There are many layers of regulation that apply to robotaxis. We consider two—automated driving safety regulation and robotaxi service regulation.

Safety Regulation

The fundamental challenge of automated driving safety regulation is that it is hard to assess the safety of an ADS without observing its long-term performance on the road.¹²⁸ An ADS that can safely navigate routine driving might still not be acceptably safe. The critical question is how it handles unanticipated edge cases. Over time, both NHTSA and state agencies have developed regulatory strategies that rely on monitoring and responding to safety incidents. We start with federal regulation.

In the absence of federal legislation specific to automated driving,¹²⁹ NHTSA is using its longstanding statutory authority to regulate vehicle safety generally. The National Traffic and Motor Vehicle Safety Act of 1966 (“the Safety Act”) authorizes NHTSA to (1) conduct investigations, (2) seek recalls of defective vehicles or equipment, and (3) set safety performance standards.¹³⁰ NHTSA has used each of these authorities to address automated driving.

NHTSA has used its investigative power to mandate crash reporting.¹³¹ In 2021, NHTSA issued a standing general order that requires companies testing automated vehicles on public roads to report crashes.¹³² Serious crashes had to be reported within twenty-four hours, and all crashes, no matter how minor, had to be reported each month.¹³³ In 2025, the agency narrowed the reporting requirement to exclude some crashes with less than $1,000 of property damage, but most other reporting requirements remain in place.¹³⁴ NHTSA has received reports of hundreds of crashes and made redacted reports available on its website, although it doesn’t provide the context that would make the reports easier to understand.¹³⁵

NHTSA has used its recall power to remedy defective technologies.¹³⁶ Unless a company immediately initiates a recall on its own, these recalls often follow a pattern. NHTSA starts by opening an investigation into the company’s technologies. The company and the agency exchange data. They negotiate over potential remedies. Then the company resolves the investigation by declaring a defect and issuing a recall, which takes the form of change to the company’s software. In some cases, a recall can be carried out through over-the-air software updates.¹³⁷ In the last few years, Tesla, Waymo, Zoox, and several other companies have each issued recalls.¹³⁸ For example, Waymo initiated a recall after one of its automated vehicles crashed into a pickup truck hanging off a tow truck and another crashed into a telephone pole.¹³⁹

NHTSA has not used its rulemaking power to affirmatively regulate automated driving.¹⁴⁰ The agency stated years ago that, given the rapid pace of technological change, it planned to regulate primarily through recalls.¹⁴¹ But NHTSA has used its power to exempt vehicles and equipment from existing Federal Motor Vehicle Safety Standards (“FMVSSs”). In general, companies that integrate their ADS into FMVSS-compliant vehicles don’t need an exemption. They can just “self-certify” that their automated vehicles are compliant.¹⁴² But companies that build vehicles with certain kinds of unconventional designs may need an exemption. For years, NHTSA was slow in considering ADS-related exemption requests.¹⁴³ But starting in 2025,

NHTSA announced that it would expedite requests.¹⁴⁴ And shortly thereafter, it granted an exemption to Zoox.¹⁴⁵

It is important to recognize that, under the Safety Act, FMVSS exemptions are limited either by purpose or by number of vehicles. But because NHTSA itself promulgates these standards, it can obviate the need for exemptions by changing the underlying standards—as it has already done in the case of certain occupant-protection standards.¹⁴⁶

There is another layer of automated driving safety regulation at the state level.¹⁴⁷ We focus on the first two states where commercial robotaxi service became available, Arizona and California. They nicely illustrate the range of options.

Arizona’s policy is relatively laissez-faire—although still arguably more stringent than the rules that apply to conventional driving. An Arizona statute expressly authorizes companies to operate automated vehicles on two conditions.¹⁴⁸ First, the company must provide the state’s Department of Public Safety with a plan for how law enforcement can effectively interact with the vehicles.¹⁴⁹ Second, the company must provide the state’s Department of Transportation (“DOT”) with a written statement “acknowledging” that its vehicles comply with federal safety standards and Arizona’s registration, licensing, and insurance requirements.¹⁵⁰ The company must also “acknowledg[e]” that its ADS can comply with the traffic law and achieve a “minimal risk condition”—which generally though

not necessarily involves pulling over to side of the road¹⁵¹—when it encounters a situation it cannot handle safely.¹⁵²

Arizona does not specifically empower regulators to set independent safety standards. But it does authorize the DOT to suspend the registration of an automated vehicle after determining it “is not in safe mechanical condition and endangers persons on the highway.”¹⁵³ And the statute makes it clear that the company that is testing or deploys the automated vehicle “may be issued a traffic citation or other applicable penalty if the vehicle fails to comply with traffic or motor vehicle laws.”¹⁵⁴

Arizona has succeeded at attracting testing to the state. But its approach may have also contributed to a fatal crash. In the late 2010s, before the enactment of Arizona’s current automated driving statute,¹⁵⁵ Uber was attempting to develop an ADS with the goal of operating a robotaxi service. It was testing automated vehicles in Arizona with safety drivers.¹⁵⁶ In March 2018, one of Uber’s vehicles struck and killed Elaine Herzberg in Tempe, Arizona.¹⁵⁷ Herzberg was walking her bike across a multi-lane boulevard in the evening.¹⁵⁸ The Uber ADS sensors detected Herzberg, but the software did not slow the vehicle until it was too late.¹⁵⁹ The safety driver didn’t react in time because she was distracted by her smartphone.¹⁶⁰

The National Transportation Safety Board (“NTSB”) investigated the crash and issued a report that criticized both the safety driver and Uber’s safety practices.¹⁶¹ Regulators might have been able to prevent the crash if they had asked Uber more questions about how it was monitoring safety drivers and preventing them from becoming complacent. After the crash, Arizona’s governor ostensibly suspended Uber’s right to operate automated vehicles in the state.¹⁶² But Arizona didn’t change its general approach to safety regulation.¹⁶³

California’s policy is more hands-on.¹⁶⁴ A California statute directs the state’s Department of Motor Vehicles (DMV) to develop an application process for the testing and deployment of automated vehicles.¹⁶⁵ The statute requires all automated vehicles to comply with federal vehicle safety standards (unless exempted).¹⁶⁶ It also provides, however, that the DMV’s application process “shall include any testing, equipment, and performance standards [that it] concludes are necessary” for safety.¹⁶⁷ This language suggests that the DMV may directly regulate ADS safety. (More generally, states already exercise broad authority over the operational safety of vehicles, including through driver regulation, rules of the road, and vehicle roadworthiness.)¹⁶⁸

California’s DMV issues three kinds of automated driving permits: testing (with a safety driver), driverless testing (without a safety driver in the vehicle), and deployment.¹⁶⁹ A company engaging in activities for which a permit is required is subject to specific reporting requirements.¹⁷⁰ The company must disclose, among other information, the number of miles its automated vehicles drove on California roads and any crashes in which they were involved.¹⁷¹ Unlike NHTSA, California doesn’t let companies redact their narrative description of the crash. The combination of miles reporting and crash reporting gives the DMV a rough sense of a company’s crash rate, though this must be understood in the context of the ADS’s ODD.

To receive a deployment permit, a company must certify, among other things, that its vehicles have a two-way communication link with a remote agent and that they meet industry standards for cybersecurity.¹⁷² It must also provide information about its testing on public roads in California and elsewhere, including the number of miles driven and any crashes during testing.¹⁷³ The DMV can use the company’s track record in driverless testing to assess the risk of deployment. If the track record raises concerns, the DMV may decline to issue the deployment permit.

California currently doesn’t require a company with a deployment permit to report miles or crashes. This is unfortunate, because although companies are still reporting crashes to NHTSA, the public is deprived of access to the crash narratives that NHTSA redacts. The DMV does, however, require a company with a deployment permit to report any recalls it issues.¹⁷⁴ And the DMV also has the power to suspend or revoke permits on several grounds, including if it determines that the company’s “vehicles are not safe for the public’s operation.”¹⁷⁵

The strengths and weaknesses of California’s permitting system are illustrated by its experience with Cruise, the now defunct robotaxi subsidiary of General Motors. Cruise jumped through all the hoops—obtaining a testing permit, a driverless testing permit, and a deployment permit.¹⁷⁶ And in 2022, Cruise started to deploy a robotaxi fleet in San Francisco.¹⁷⁷ By the summer of 2023, Cruise’s robotaxis were involved in some crashes that raised doubts about its technologies. After a crash between a Cruise robotaxi and a firetruck, the California DMV made Cruise cut its fleet in half.¹⁷⁸ Then in October 2023, a conventional vehicle (whose driver fled the scene) hit a pedestrian walking across the street, and the force of that collision propelled her into a Cruise robotaxi in an adjacent lane.¹⁷⁹ The robotaxi ran her over, stopped, and then started moving again, dragging her while she was pinned beneath the vehicle.¹⁸⁰

Cruise then misled regulators and the public about the crash by focusing on the initial collisions and failing to mention the subsequent dragging.¹⁸¹ When the California DMV learned the full story, it suspended Cruise’s deployment permit.¹⁸² The DMV said it was suspending Cruise’s permits both because it had concluded that Cruise’s ADS was not safe and because Cruise had misrepresented information related to safety.¹⁸³ The company paid a $1.5 million federal fine.¹⁸⁴ In December 2024, GM shut Cruise down while claiming that its work would be folded into GM’s efforts to develop more advanced features on its production vehicles.¹⁸⁵

Until recently, California’s automated driving law didn’t explicitly provide a way for police to enforce the traffic law when a company was operating automated vehicles with no safety driver behind the wheel. This loophole deeply concerned local officials. The City of San Francisco explained that its police and fire departments don’t know what to do when a robotaxi blocked traffic or emergency vehicles.¹⁸⁶ In 2024, California enacted a statute that authorizes police to issue a “notice of autonomous vehicle noncompliance” against a company when one of its automated vehicles violates the traffic law.¹⁸⁷

Service Regulation

Robotaxi companies may also be subject to another layer of regulation—regulation of the provision of transportation service. In Arizona and California, robotaxi regulation grew out of TNC regulation, which in a sense grew out of (or was imposed over) taxi regulation.

Taxi companies are often regulated as or akin to common carriers.¹⁸⁸ Many large municipalities restrict entry into the formal taxi market.¹⁸⁹ In some cities, taxi drivers own or lease a medallion that authorizes them to operate.¹⁹⁰ Fares are fixed by regulation, usually at a constant rate per mile.¹⁹¹ And taxi companies are required to provide universal service—they cannot discriminate among riders.¹⁹²

Municipalities justify each element of taxi regulation with different policy rationales. Entry restrictions are thought to reduce congestion, limit pollution, protect driver pay, and prevent taxi drivers from competing for riders in dangerous ways.¹⁹³ Fare regulation is seen as a remedy for imperfect information. Riders hailing taxis on the street cannot easily compare fares, so regulation ensures the fares are always the same.¹⁹⁴ The universal service requirement has distributive goals—providing mobility for all residents regardless of their race, sex, class, or neighborhood.¹⁹⁵

The combination of entry restrictions, fare regulation, and a universal service requirement is also intended to create a system of implicit cross-subsidies.¹⁹⁶ The profits that taxis make in places and times with high travel demand (and thus less deadheading) subsidize the service they provide in places and times with low travel demand.¹⁹⁷ Without these regulations, new entrants might be able to “creamskim”—serve only the high value trips and thereby erode the profits that cross-subsidize other trips.¹⁹⁸ This was an early complaint about Uber and Lyft.

It is hard to assess whether the benefits of traditional taxi regulations outweigh the costs. With entry restricted, the taxi industry had little incentive for innovation. It was startups, not incumbents, that introduced hailing by app. The system of cross-subsidies didn’t always work. Many Brooklynites have hailed a cab in Manhattan only to watch the driver pull away after they gave their destination. But as defenders of taxi regulation have pointed out, many American cities experimented with deregulating taxis in the 1960s, 70s, and 80s only to find that fares rose and service quality declined.¹⁹⁹ In fact, most large cities that deregulated ultimately decided to bring back regulation.²⁰⁰

In the 2010s, taxi regulation faced a new challenge—the rise of app-based ridehailing. Uber and Lyft offered lower fares, often shorter wait times, seamless payment, a driver rating system, and a more convenient way to hail a ride.²⁰¹ They rapidly took market share away from taxis.²⁰² Uber and Lyft were also “regulatory entrepreneurs.”²⁰³ In many jurisdictions, their service was illegal or in a legal gray area. For example, while Uber initially focused on professional drivers that might be regulated by something like NYC’s Taxi and Limousine Commission, it soon expanded to ordinary drivers who were freelancing. In some jurisdictions, legislators and regulators cracked down.²⁰⁴ Uber and Lyft fought back by encouraging their customers to lobby their state representatives to legalize—and often preempt local regulation of—the transportation service they had come to prefer.²⁰⁵

In recent years, the TNC market has stabilized. Uber and Lyft have formed a duopoly, splitting the market about three-to-one.²⁰⁶ They have both steadily raised their fares.²⁰⁷ After their respective IPOs, they could no longer rely on venture capitalists to subsidize their rides and faced investor pressure to turn a profit. In hindsight, the low fares and high driver pay of ridehailing’s early days were an unsustainable illusion—and arguably a predatory pricing scheme.²⁰⁸ But despite the increased fares, TNCs are offering a better service than taxis did, at least if you measure by consumers’ willingness to pay.

Municipalities and taxi companies should have taken the opportunity presented by app-based ridehailing to rethink taxi regulation. They should have been allowed to craft a new set of rules that apply equally to all vehicles-for-hire.²⁰⁹ But that didn’t happen. In many states, Uber and Lyft bypassed cities and went directly to state legislatures in their pursuit of a new legal category—TNCs—with a new set of rules different than the local rules that continue to apply to taxis.

Although often associated with their apps, the key feature of TNCs is their reliance on drivers using their own private vehicles.²¹⁰ TNCs are not subject to entry restrictions or to fare regulation that many municipalities still apply to taxis.²¹¹ The imperfect information rationale for fare regulation is arguably obsolete because riders can compare fares by toggling between apps.²¹² To the extent that certain rides are subsidized, it is because of strategic considerations by the companies or the drivers.

The content of TNC regulation varies by state. Arizona’s rules focus on rider and driver safety. Arizona’s TNC statute provides that the state Department of Transportation shall issue permits to TNCs that comply with the statute’s requirements.²¹³ Before each ride, TNCs must disclose to riders the identity of the driver, the vehicle’s license plate, and the fare.²¹⁴ After each ride, they must provide riders with an electronic receipt and preserve a digital record of the trip.²¹⁵ TNCs must disclose to drivers when the company’s insurance policies apply to them.²¹⁶ And they must screen drivers by conducting criminal background and driving record checks and enforcing a zero tolerance policy for drugs and alcohol.²¹⁷

California’s TNC statute goes further. It allocates regulatory authority to the state’s public utilities regulator, the California Public Utilities Commission (“CPUC”).²¹⁸ Like Arizona, California requires that TNCs disclose to riders information about the driver and vehicle, disclose to drivers when the company’s insurance policies apply, and conduct a criminal background check on drivers.²¹⁹ But California also mandates that TNCs meet specific minimum levels for insurance coverage that are higher than those that would otherwise apply to personal motor vehicles.²²⁰ And it prohibits TNCs from disclosing a rider’s personally identifiable information to third parties without consent.²²¹

California takes modest steps to address the externalities that TNCs create. TNCs must develop a “greenhouse gas emissions reduction plan” with targets for increasing the proportion of drivers using electric vehicles.²²² And the California legislature granted San Francisco the authority to tax riders of traditional TNCs and robotaxis to fund the city’s transportation operations and infrastructure.²²³ California has also tried to encourage TNCs to expand mobility. They are required to charge their riders five cents per trip to contribute to the “TNC Access for All Fund,” which supports accessible transportation.²²⁴

The development of robotaxis has long been connected with the rise of ridehailing. The leaders of the Google self-driving car program decided to pursue the robotaxi business model as they watched ridehailing take off.²²⁵ Both Uber and Lyft tried to develop their own ADS. Uber founder Travis Kalanick once called robotaxis “existential” for his company.²²⁶ But the reputation of Uber’s automated driving program was damaged by revelations following its fatal crash in Arizona in 2018. And after their IPOs, neither Uber nor Lyft had the cash to sustain their programs, so they sold them.²²⁷

The first robotaxi regulations have been strongly influenced by TNC regulations. Arizona applies its TNC regulations to robotaxis through incorporation by reference. An Arizona statute provides that: “An on-demand autonomous vehicle network may operate pursuant to [the state’s TNC statute] except that any provision of [that statute] that by its nature reasonably applies only to a human driver does not apply to a fully autonomous vehicle operating with the [ADS] engaged . . . .”²²⁸

California’s legislature has not enacted a statute specific to robotaxis (as opposed to TNCs, vehicles for hire, or automated driving more generally). Instead, the CPUC created its robotaxi regulations using its existing statutory authority over vehicles for hire.²²⁹ In 2018, the CPUC created two pilot programs for robotaxis. The first pilot let companies with a vehicle-for-hire permit and a DMV testing permit offer rides in their robotaxis with a safety driver present.²³⁰ The second pilot let companies with a vehicle-for-hire permit and a DMV driverless testing permit offer rides without a safety driver.²³¹ Companies participating in the pilots were prohibited from accepting payment from riders. And they were required to submit aggregate data on their operations.²³² Cruise, Waymo, Zoox, and three other companies obtained permits for at least one of the pilots.²³³

In 2020, the CPUC issued regulations for robotaxi deployment. Companies with a vehicle-for-hire permit and a DMV deployment permit were allowed to apply to the CPUC for a robotaxi deployment permit.²³⁴ Companies that were approved were allowed to start charging riders.²³⁵ The CPUC imposed two new obligations on applicants. First, they have to submit a “Passenger Safety Plan” that explains how they (1) minimize safety risks from other riders; (2) minimize safety risks from outside the vehicle; (3) ensure riders can safely identify the vehicle, enter, and exit; (4) enable riders to communicate with remote operators; and (5) collect and respond to rider complaints.²³⁶ Second, after a company is approved to deploy, it has to submit detailed, trip-level data on each ride request and each ride.²³⁷

Two companies—Cruise and Waymo—applied to deploy a commercial robotaxi service in San Francisco.²³⁸ In August 2023, the CPUC approved both requests.²³⁹ But as we have seen, Cruise’s robotaxi service did not last long. The CPUC suspended Cruise’s robotaxi deployment permit after the DMV suspended Cruise’s ADS deployment permit in the aftermath of its serious pedestrian crash in October 2023.²⁴⁰ Waymo’s robotaxi operations, however, have continued to grow. In March 2024, the CPUC approved Waymo’s request to expand its service area in San Francisco down to Silicon Valley and to add a new service area in Los Angeles.²⁴¹

So today, at least two states have considerable experience regulating an active commercial robotaxi service.²⁴² In the rest of this Article, we ask, how should they regulate?

II. Curbing Externalities

We start with regulating externalities. Robotaxis will emit pollutants into the environment. They will contribute to wear and tear on physical infrastructure. They will cause congestion. They will passively surveil their surroundings, which could erode privacy. But so too will many other technologies and travel modes. In this Part, we consider how policymakers should respond to the externalities of robotaxis in a way that accounts for this broader context.

A. Externalities and Mode Choice

One might think there’s an easy answer to the externalities robotaxis create: impose Pigouvian taxes, so the robotaxi companies internalize the costs. But personal motor vehicles, taxis, TNCs, and other modes of travel—whether automated or not—also create externalities. So policymakers must consider how externality regulation will affect choices among modes.

Burdening automated driving in ways that do not burden conventional driving will push people toward conventional driving. Burdening robotaxis in ways that do not burden personal automated vehicles will push people toward personal automated vehicles. If robotaxis offer net social benefits relative to those modes, these are not desirable outcomes.

But externality regulation that applies to all travel modes might not always be attainable.²⁴³ The practicality and political feasibility of regulation can vary by mode. In some cases, robotaxis might be easier to regulate, and to at least some degree policymakers should take advantage of the opportunity.

We suggest a hierarchy of action:

Internalize costs across all travel modes.
Where this is not possible, internalize costs across motor vehicle modes.
Where this is not possible, internalize costs across fleet-deployed motor vehicles.
Where this is not possible, internalize costs across automated vehicles.
Where this is not possible, internalize costs across robotaxis.

Costs can be internalized through taxation, market caps, performance requirements, or other regulatory mechanisms. If applied proportionately, the regulatory mechanisms should be automatically indexed so that the extent of a mode’s internalization of its external costs rises along with its share of the market. In addition, when choosing what and how to regulate, we suggest prioritizing action on what are likely to be significant inflection

points that could lock the public, policymakers, and companies into one long-term path or another.

Take the example of motor vehicle emissions that we discuss below. Ideally, in our view, regulators would require that all new motor vehicles²⁴⁴ achieve increasingly aggressive fuel efficiency standards. If that’s not politically realistic, then it may be appropriate to begin with fleets—government vehicles, other vehicle pools, rental cars, and the like.²⁴⁵ But imposing significant initial burdens on these fleets could significantly disadvantage them vis-à-vis private ownership models. And so, it may be appropriate to require fleet vehicles to meet a fuel efficiency standard that is somewhere between the standard for regular vehicles and the standard that would be ideal.

Or take the example of the third-party liability insurance required for motor vehicles. Countries in the European Union generally require vehicle owners and operators to have liability insurance that covers anywhere from millions of dollars of exposure to literally unlimited exposure.²⁴⁶ Even the low end of this range is a hundred to a thousand times greater than minimum insurance requirements in most U.S. states. Ideally, in our view, states would dramatically increase insurance minimums across the board and index them to inflation.²⁴⁷ States have not done so.²⁴⁸ Some states, however, have required the companies testing or deploying automated vehicles to show financial responsibility in the millions of dollars.²⁴⁹ Under our approach, the difference between the two requirements might not be so great, but this is at least useful precedent—and, in fairness, does not seem to have dampened enthusiasm for automated driving.²⁵⁰

Finally, we recognize that even when internalizing externalities provides benefits to those with less money, it can also impose disproportionate costs on them. An increase of $1,000 in the price of a new car to include an important safety feature is negligible for someone who can afford a $150,000 car but significant for someone who can afford only a $15,000 car. So too is increasing the per-mile cost of a trip (whether by private automobile or robotaxi) by fifty cents.

Fortunately, internalizing costs is only half of the policy question. The other half is how to channel the societal gains. In the easiest case of governmental revenue, a government can return to households any additional funds it receives from, say, taxing carbon or setting a floor for the price of energy. If designed carefully, these rebates can ultimately enhance rather than diminish individual choice: Someone who chooses to travel an average amount by personal automobile might well break even if their rebate covers the additional costs of fuel, tolls, and parking. Meanwhile, someone who chooses to live closer to work or bicycle may well come out ahead. Even where the benefits are societal rather than governmental and abstract rather than fiscal, smart policies can equitably capture and return some of this gain.²⁵¹

In this section, we address just some of the external costs of motor vehicle travel: pollution, wear-and-tear, congestion, and privacy. Of course, traffic injury is a national crisis, but it is beyond the scope of our present analysis.²⁵²

B. Pollution

A critical externality of motor vehicle use is air pollution. Tailpipe emissions from traditional gasoline and diesel vehicles account for about one-fifth of greenhouse gas emissions in the United States.²⁵³ And tailpipes also emit other gases and particulates harmful to human health.²⁵⁴

The gradual electrification of the vehicle fleet is reducing its per-mile carbon footprint.²⁵⁵ In the most recent quarter, almost nine percent of new vehicles sold in the United States were battery electric.²⁵⁶ And the United States lags many countries in the developed world in electric vehicle adoption. In Norway, about eighty-nine percent of new vehicles sold in 2024 were electric.²⁵⁷

The Biden administration prioritized electrification of the vehicle fleet. The Inflation Reduction Act provided tax credits for electric vehicles and charging stations.²⁵⁸ The U.S. Environmental Protection Agency issued a new tailpipe emission rule that would effectively require half the new cars sold in 2032 to be electric (or use an alternative fuel).²⁵⁹ And the U.S. Department of Transportation has set a fuel economy standard that would require the cars that each automaker sells to average sixty-five miles per

gallon.²⁶⁰ Since 2025, The Trump administration or Congress has reversed many of these steps.²⁶¹

Some states have gone further—or at least have tried to.²⁶² California law requires that all new passenger vehicles sold in the state in or after 2035 be powered by something other than gasoline or diesel.²⁶³

The robotaxi business model is well-suited to electric vehicles. Robotaxis are being deployed in dense, urban areas. They are never too far from a charging station. A robotaxi company can monitor when its vehicles need to be recharged, and its routing algorithms can plan its trips accordingly. Robotaxi riders being shuttled around a city don’t suffer “range anxiety” the way that a human driver might on a long-distance trip. Charging does currently require taking a robotaxi out of operation for potentially longer than a stop at a gas station, but this may eventually be addressed with better batteries, faster charging, charging-in-motion, and even battery swapping (which is likely more manageable within a fleet than between private vehicles).

Policymakers should mandate that all robotaxis be electric or alternative-fuel vehicles.²⁶⁴ California has already enacted a statute that requires any automated vehicle in model year 2031 or later to be electric.²⁶⁵ There’s no reason to wait that long. The large U.S. companies that are deploying or developing robotaxis are using electric vehicles today—Waymo’s Jaguar I-Pace, Zeekr minivan, and Hyundai Ioniq; Zoox’s bespoke electric vehicle; and all of Tesla’s models.²⁶⁶ And none have announced plans to use gasoline-powered vehicles in the future. An electric vehicle mandate for robotaxis would likely not face the opposition that a broader requirement could. And it would have the effect of setting a market floor that others could not subsequently undercut.

An electric vehicle mandate will not eliminate robotaxis’ contribution to air pollution. Increasing demand for electricity can increase emissions if that electricity is generated by burning fossil fuels. Tires, brake pads, and other vehicle parts exposed to heat or friction generate particles that can harm the environment and human health.²⁶⁷ Supply chains for vehicles and data centers for automated driving also have significant environmental impacts. But here mode-neutral environmental regulation is likely the best solution.

C. Wear-and-Tear

Motor vehicles also cause wear-and-tear on the roads. State and federal governments address this externality by charging excise taxes on gasoline.²⁶⁸ Revenue from gas taxes can—and in some states, must—be spent on transportation infrastructure.²⁶⁹ The rationale for a gas tax is that gas consumption roughly tracks miles driven, so the tax functions as a user fee.

As motor vehicles have become more fuel-efficient and as electric vehicles have increased in popularity, though, the connection between the gas tax and VMT is becoming attenuated. To make matters worse, the federal gas tax and some state gas taxes are not indexed to inflation.²⁷⁰ Although the gas tax today still generates revenue with the salutary effect of promoting electric vehicles, at some point it will be necessary to find other ways to finance surface transportation.

The simplest alternative to a gas tax is a VMT tax—a per mile charge to use the public roads. Four states are already implementing VMT taxes for electric vehicles.²⁷¹ These states offer electric vehicle owners the choice of paying a fixed annual fee or paying a VMT tax capped at the level of the annual fee.²⁷² Hawaii plans to take away the choice and require all electric vehicle owners to pay its VMT tax in 2028.²⁷³

A shift to electric vehicles may increase wear-and-tear on the roads because batteries make electric vehicles heavier than similar internal combustion engine vehicles.²⁷⁴ In a world where all motor vehicles were electric and an upstream carbon tax addressed the broader environmental burden of energy production, a weight-adjusted VMT tax might be the optimal solution. Short of that, tweaking traditional fuel taxes by properly indexing them to inflation, adjusting them for fleetwide fuel efficiency, and using them to provide a floor for the price of fuel could address wear-and-tear while capturing some of the larger externalities of internal combustion engines.

D. Congestion

Congestion is an externality that all motor vehicles can create. But robotaxis may exacerbate congestion by satisfying latent travel demand or creating new travel demand.²⁷⁵ Riders might find travel in a robotaxi less costly. The cost reduction could be financial: a robotaxi company might charge fewer cents per mile than a traditional TNC would. It could be about opportunity cost: a passenger in an automated vehicle might be able to sleep or do work that a driver could (and should) not. Or it could be psychological: riding may be less stressful than driving, especially during congested periods. The cost reduction might also encourage people to make different

decisions about where they live or work. In each case, the benefits could lead people to take more trips and longer trips.

How much congestion robotaxis create will depend not only on how many people take rides and how long those trips take, but also how efficient the networks are. As we mentioned in Part I, Waymo’s robotaxis in San Francisco are deadheading over 40% of the time.²⁷⁶ The robotaxi companies’ private incentives to reduce deadheading don’t capture all the social costs of congestion, so regulation can and should supplement that incentive. But it is important to remember that personal cars have their own form of deadheading: the miles they drive while cruising in search of parking.

Some U.S. cities have VMT taxes that apply only to certain modes, which function in some ways like a congestion tax. As we mentioned in Part I, the California legislature gave the City of San Francisco the authority to tax TNCs and robotaxis.²⁷⁷ In 2019, San Francisco voters approved a tax, now called the Traffic Congestion Mitigation Tax, at the ballot box.²⁷⁸ Riders in a gasoline vehicle who request to ride solo are taxed up to 3.25%.²⁷⁹ Riders in an electric vehicle and riders who request to share their ride are taxed 1.5%.²⁸⁰ In some respects, the tax is well-designed. The tax is a fixed percentage of the fare, so it should scale with VMT and travel demand. But because it only applies to TNCs and robotaxis, it distorts the market in favor of personal motor vehicles.

We are less sure of the politics of more ambitious visions of VMT taxation in which continuous monitoring facilitates dynamic—that is, demand-variable—pricing. As a general matter, Americans seem skeptical of devices that are attached to their cars for the purpose of updating “the government” on their travel. This is understandable.

Instead, we favor a mix of mechanisms that, in combination, generate revenue above an excise tax on gas or carbon, serve as a proxy for the use of valuable road space, and accordingly help to manage travel demand. These include congestion prices in urban centers, other forms of variable tolling on major roadways and bottlenecks, and market-rate parking rates. As famous photos comparing the road space used by people on foot, in a bus, on bikes,

and in cars suggest,²⁸¹ the key is to charge for road space in a way that optimizes that use.²⁸²

Congestion pricing has been implemented in London, Milan, Singapore, and Stockholm.²⁸³ In January 2025, after much drama, New York City implemented the first general purpose congestion tax in the United States.²⁸⁴ The initial results are promising. Travel times on the bridges and tunnels leading to lower Manhattan have fallen.²⁸⁵ But it is too early to predict the long-term equilibrium.

An important point here is that there is no definitive solution to congestion: like popular restaurants, popular places and routes at popular times will be crowded. But there are still important policy choices about what that crowd looks like—and who can get through. If single- or zero-occupancy motor vehicles are queued, can people in communal and active modes still move? Do emergency vehicles have a path? If automated driving increases both demand and capacity, the result could be even more vehicles but no greater mobility.²⁸⁶ Given this, it is essential to start answering these questions before automated vehicles start eclipsing conventional vehicles.

E. Privacy

Loss of privacy is a hidden externality—and one with which automated driving has a complicated relationship.²⁸⁷ We see privacy as playing a nuanced but ultimately important role in advancing the important societal values of freedom and community. Safety can preserve a person’s privacy.²⁸⁸ Surveillance can impede a person’s ability to act on their own and to form relationships with others.

An ADS aims to generate a three-dimensional, 360-degree view of its surroundings.²⁸⁹ That is why automated vehicles are outfitted with a suite of sensors. Those sensors are constantly receiving data about the objects in the vehicle’s vicinity. As a consequence, any person who passes within the range of the sensors will likely (and indeed should) be perceived by these sensors.

A high-fidelity perception system is critical to ADS safety. An ADS can choose a safe path only if it knows where people, animals, and objects are moving in real time. Indeed, one of the ways that ADSs might improve on human drivers is by detecting and tracking objects that a driver might miss.²⁹⁰ If stored, ADS perception data are also valuable for crash investigations, though more data does not necessarily mean more certainty. In addition, insights from these data might be useful to important research that has little to do with automated driving.

It might seem as though the privacy interests affected are insignificant. ADS sensors will only pick up what can be seen from a public roadway. Many of these places will also be surveilled by business or home monitoring systems. In a conventional sense, there is little reasonable expectation of privacy on a sidewalk or a front porch.²⁹¹

But we think the privacy risks are substantial. If automated driving succeeds commercially—and here we are talking not only about robotaxis—then surveillance will become pervasive.²⁹² Automated vehicles will frequently pass by your home, your workplace, and every third place you visit. Their powerful sensors in combination with onboard and offboard computing power will add considerably to existing and growing surveillance by private and public actors.

Automated driving companies might also, among others, quietly become agents of law enforcement.²⁹³ Increased monitoring could have real benefits for deterring crime or apprehending suspects. But if a city councilor proposed to have the police department build a system of pervasive surveillance, at a minimum we would have a debate about whether the public safety benefits outweighed the privacy harms.²⁹⁴ The deployment of robotaxis might bring about the same privacy loss without any public debate. Courts have already issued warrants to robotaxi companies for sensor data.²⁹⁵ And police may not always need to get a warrant. After a deliberate explosion in a Cybertruck in Las Vegas, for example, Tesla quickly made information from that vehicle and from its network available to law enforcement.²⁹⁶

Waymo and its erstwhile rival Cruise both disclosed that they have provided ADS video data to the police. Waymo claimed that it generally only shares data under a warrant or court order.²⁹⁷ The company has stated that, if the police make a request that is overbroad, “we try to narrow it, and in some cases we object to producing any information at all.”²⁹⁸ Cruise likewise stated that it “disclose[s] relevant data only in response to legal processes or exigent circumstances, where we can help a person who is in imminent danger.”²⁹⁹ Both of these statements are carefully hedged, and they have not been independently verified beyond some open records requests. These dynamics evoke past (and indeed current) debates about the relationship between telecommunications companies and federal investigators.

Companies have strong incentives to stay in the good graces of law enforcement because policing requires discretion. Every time an automated vehicle is involved in a crash or at least arguably violates a traffic law is an opportunity for the police to use their discretion to benefit the automated driving company. So companies may decide to curry favor with police by voluntarily sharing videos and other data that will be useful for their investigations.

So how can regulation reduce privacy risks while not inhibiting the development and deployment of safe automated vehicles?

We would prefer to see these risks addressed as part of a much broader privacy framework. These challenges are not limited to robotaxis or automated vehicles more generally or advanced motor vehicles even more generally. They also exist for aerial drones, sidewalk robots, smartphones, doorbell cameras, a wide range of other consumer-facing connected devices, and an even wider range of more obscure applications.³⁰⁰

In the absence of such an approach, policymakers should use their existing authority to scrutinize the data practices of companies within that authority. Unfortunately, this is likely to result in different rules for similar actors. If, for example, an agency has authority over robotaxis but not automated driving companies more generally, then rules for robotaxis might look different than rules for automated driving more generally. But these discrepancies might be useful in experimenting and ultimately incentivizing efforts to harmonize.

What might this scrutiny look like? It could focus on an admittedly nebulous category of “privacy-sensitive data” that could reveal personally identifiable information. And it could specify processes by which companies may seek to use those data for purposes other than operating and improving their automated vehicles—including sharing those data with affiliated companies (like Google or Amazon) or with law enforcement.

To be sure, these rules will impose a compliance burden. Affected companies will need to keep track of who has access to privacy-sensitive ADS data and monitor them. And like many privacy regulations that apply to a company’s internal operations, these rules will not be easy to enforce. Regulators may need to rely on whistleblowers. But if we do not take action to protect privacy before automated vehicles are widely deployed, we may be sleepwalking into a regime of pervasive surveillance.

III. Protecting Riders

The easiest way to protect riders is to give them choices—provided that those choices are not skewed. Competition can force firms to lower fares, improve service, and invest in innovation. Today, robotaxis are providing healthy intermodal competition by offering an alternative to TNCs, taxis, and personal cars. But there might not be much intramodal competition among robotaxi companies. As we explained in Part I, robotaxis create economies of scale and network effects that favor concentration. In many U.S. cities today, the TNC market is an Uber-Lyft duopoly.³⁰¹ The robotaxi market could easily become a Waymo monopoly. And if robotaxis start to replace other modes, a robotaxi monopoly could be more dangerous.

To be sure, market concentration is a possibility but not a certainty. Robotaxis may involve a variety of technologies and business cases. As technologies improve and their costs decline, automated vehicles or even ADSs that can be added to existing vehicles may become surprisingly cheap to make, buy, and even operate. This seems especially likely if the ADSs of the future are less reliant on numerous sensors, highly detailed maps, and remote human assistants. Some may even be open source. This could create competition among vehicle owners, among providers of automated driving services, and among automated travel modes. Concentrations, if they exist at all, might turn up in surprising places. If would-be passengers can simply rely on their own personal AI agent to automatically find—and even negotiate for—a ride, then public-facing platforms such as Uber or Amazon may lose some of their brand and market power.

But we think the risk of market concentration is real enough that it is worth anticipating. So in this Part, we recommend a two-step approach to rider protection. First, policymakers should put a thumb on the scale for new competitors. Second, they should take steps now to preserve rider autonomy in a concentrated market.³⁰² We hope that preventing monopoly abuse or neglect long before a monopoly arises will not just protect riders—it will give them the peace of mind to use robotaxis instead of personal motor vehicles.

A. Promoting Competition

How can robotaxi regulators promote competition and encourage innovation among robotaxi companies? We argue that they should permit open entry, ban contracts that lock in riders, and enable one-stop access to competing networks. But before we turn to these proposals, we want to emphasize a subtle reason why competition is especially important in the robotaxi market: it may create redundancy that will prove valuable for safety.

Competition and Safety

The development of a safe ADS would create tremendous social value. In 2023, there were 40,901 people killed in motor vehicle crashes in the United States and approximately 2.4 million people injured.³⁰³ NHTSA estimates that the annual social cost of crashes—including both the direct economic costs and the implied costs of death and injuries using the value of a statistical life—is about $1.37 trillion.³⁰⁴ Therefore, an ADS only needs to modestly improve on the safety performance of human drivers to be worth tens of billions in social benefits each year. If automated driving can achieve the safety gains that its developers are hoping for, the tens of billions of dollars of capital that have been invested to date may be below the socially optimal level.

If more companies invest in developing an ADS, more ideas will be pursued. Any particular corporate research lab is limited by the idiosyncrasies of its leadership and the path dependence of its development approach. But as long as competing labs exist, engineers who cannot get their managers to greenlight their ideas can take them elsewhere. And the more ideas that get pursued, the greater likelihood that they will make a real difference for safety—individually or in combination.

There is a special reason to care about independent development in this context. In safety engineering, redundancy is a virtue. Many safety-critical systems, like commercial airplanes, are designed to be redundant.³⁰⁵ If one subsystem fails, a backup system not vulnerable to the same failure mode can step in. This may be why some companies are developing ADSs that combine modular and pure end-to-end approaches.³⁰⁶ It is possible that an even more robust system could be developed by combining two systems developed by independent companies into one redundant system—if competition is not cut off prematurely.

Similarly, different companies might develop different—and ultimately complementary—approaches not only to design but also to safety validation and verification. Multiple approaches to simulation, for example, could help to increase both the accuracy of and confidence in methods for demonstrating and monitoring the safety of automated vehicles.

We recognize the irony in advocating for competition on the ground that it could produce an outcome where two competitors eventually merge their technologies. But that is largely the path that the aviation industry followed—a period of competition on safety followed by cooperation on safety. And even if robotaxi companies ultimately converge on ADS design, they can still compete on service quality, wait times, and price.

Competition in the robotaxi industry may also improve the transportation system’s resilience to cyberattack. If one robotaxi company’s system is hacked and has to ground its fleet, a competitor could serve the riders who might otherwise have been stranded. If competing robotaxi companies use different cybersecurity strategies, it may be more difficult for hackers to disrupt them both simultaneously.

Open Entry

Now we turn to our proposals for promoting competition—starting with open entry. The term “open entry” has three meanings in this context. It means that any company can enter the market. It means that any company can deploy as many vehicles as it chooses. And it means that companies can, through APIs and common data specifications, market the services of their competitors.³⁰⁷

All three senses of open entry are relevant to competition. As we have seen, the robotaxi business model relies on economies of scale. Robotaxi companies will need to deploy large fleets in many cities to overcome the fixed costs of developing an ADS. A company raising capital to challenge Waymo needs to be able to reassure its investors that it will be permitted to fight for the whole market and try to grow it. Restricting entry could entrench a Waymo monopoly and reduce socially valuable safety innovation.

Open entry in service regulation is compatible with pre-deployment scrutiny in safety regulation. California illustrates this possibility. As we explained in Part I, the California DMV requires companies testing or deploying automated vehicles to apply for permits.³⁰⁸ When a company applies for a deployment permit, the DMV can consider whether the applicant’s track record during testing in California or testing or deployment elsewhere supports deployment in California. The CPUC then conditions entry to the robotaxi market on the DMV issuing a deployment permit.³⁰⁹ The combination of pre-deployment safety scrutiny and otherwise open entry protects the public without reducing competition from responsible entrants.

Open entry will create externalities—more pollution, wear-and-tear, congestion, and surveillance. It could also enable an entrenched competitor to flood a market as a defensive mechanism. But restricting entry is an overly crude tool to curb them. The proposals we provided in Part II are more targeted means to regulate externalities.

Open entry also does not mean tying the hands of government when it acts as a market participant rather than a regulator. Transit operators, for example, should be able to exclusively partner with robotaxi companies to extend the reach of their networks. In fact, Waymo has already announced plans to operate a transit service for Chandler, Arizona.³¹⁰ And certain roadways owned by government agencies—such as airport access roads—might merit special rules. San Francisco is experimenting with a pilot program that allows Waymo robotaxis to use an otherwise car-free stretch of Market Street.³¹¹

Lock-in Contracts

Policymakers should also prevent robotaxi incumbents from locking in riders. A new entrant will likely need to heavily subsidize their rides until they can get enough riders on the network to bring deadheading down to a tolerable level. This is part of why Uber and Lyft burned through billions while they were building up their networks.³¹² On the other hand, this is also how cell companies initially funded their expensive networks—and yet pay-as-you-go plans are now thriving.

A robotaxi monopolist could entrench its position by offering its service as a subscription contract. Waymo is already offering subscriptions for teenage riders.³¹³ Subscriptions would make it hard for a new entrant to get riders to switch networks. Even if the new entrant offered a better service or a lower fare, subscribers would have no reason to consider switching until it came time to renew their subscriptions. So, the new entrant would need more time and money to build up network effects.

Consider how competition would play out if an incumbent monopolist had a more extensive ODD than a new entrant. If riders buy individual rides rather than a subscription, the new entrant has a fighting chance. It could gain a foothold in the market by serving some smaller segment of travel demand. Riders could choose the new entrant for individual trips in its limited service area and the incumbent for individual trips to places the new entrant doesn’t serve. If, however, riders buy one subscription to serve all of their travel needs, a new entrant cannot compete until it can serve a comparably extensive area.

There is nothing inherently anticompetitive about subscription contracts. They can help businesses and riders plan their budgets more easily and hedge against risk that demand or fares will change. And—as we discuss more below—people might be more willing to give up their personal motor vehicles if they knew the price would be predictable.³¹⁴ But the combination of incumbents with market power, network effects, new entrants with limited ability to serve the whole market, and rider lock-in could create a formidable barrier to entry.

So, here is our proposal: instead of banning subscription contracts, policymakers can simply require that riders be allowed to cancel their subscriptions and receive a pro rata refund at any time. That approach would allow riders to gain greater certainty about fares while making it easier for new entrants to get them to switch. The competitors would not have to buy riders out of their existing contracts. A light thumb on the scale for new entrants would make it harder to maintain a monopoly.

One-Stop Access to Competing Networks

Policymakers, transit agencies, and even some companies have long recognized the potential for the integrated provision of what is often called “mobility as a service” (“MaaS”). To find the best—or the cheapest—way to get from one point to another, a traveler should not need to consult and compare multiple apps or engage in multiple transactions.

Public transit agencies have long recognized the value of a single rider interface (even if their implementation has been limited). To cite just two examples of many, New York’s Omny cards and London’s Oyster cards each work on a set of transit services that have a variety of operators. And both the New York Metropolitan Transportation Authority and Transport for London provide API access to their real-time transit data to allow independent developers to create apps and other tools for riders.³¹⁵

Others have an even broader vision for transport data. The Mobility Data Specification developed by the City of Los Angeles offers a “common language” for transport data.³¹⁶ GTFS and GTBS offer similar common frameworks for transit and bikeshare, respectively.³¹⁷ Finland mandates that both public and private providers of transportation and parking services facilitate third-party access to their schedules and prices.³¹⁸ The “multimodal digital mobility services” regulation originally envisioned—though now largely abandoned—by the European Commission would have expanded aspects of Finland’s approach to the entire European Union.³¹⁹

Many internet platform companies show offers from different providers for identical, equivalent, or comparable products and services—think Google Shopping or Amazon’s third-party sellers or, in the case of transportation, Rome2Rio and (in China) Baidu Maps.

As we noted earlier, AI agents could obviate the need for or power of some of these platforms; users could simply direct their personalized agents to find and book whatever ride suits them the best. But integrated apps, backend platforms, public APIs, and common data standards could still increase the effectiveness of—and reduce the transactions costs for—these searches.

Regulators can build on this important MaaS foundation by enabling one-stop access to competing networks of vehicular rides of all kinds. Smaller providers should have the option but not the obligation to offer their services through third-party platforms. In contrast, it may be prudent to require dominant providers to facilitate this kind of third-party access.

B. Preserving Autonomy

Even if policymakers permit open entry, limit lock-in, and enable one-stop access to competing networks, the robotaxi market may still be highly concentrated. Even with integration, the economies of scale may still tilt the market against competition. So, policymakers need to prepare for a world where one company dominates the robotaxi market. The benefits of preventing monopoly abuse are twofold. First, it protects riders should a monopoly arise. Second, it might provide people the peace of mind they need to give up their personal motor vehicles and switch to robotaxis today.

The appeal of personal motor vehicle ownership is autonomy. If you have the keys to the car in your driveway, you can at least in theory travel where you want and when you want at a price that you can anticipate. For many Americans, it is difficult to imagine living without access to their own car or truck. Yet in New York and other transit-rich cities around the world, many residents with the means to buy a personal motor vehicle choose not to own one. They have confidence that the transportation system will give them at least as much autonomy as a personal motor vehicle.

Suppose you were a New Yorker whose Texan friend was about to move to Manhattan. She has always lived in a household with a personal motor vehicle. How could you persuade her that she doesn’t need a car in her new city? You could say that the subway will take her almost everywhere she would want to go in the city, that it runs twenty-four hours a day and seven days a week, that the fare is always $3.00, and that the wait for a train is usually not long. You could say all this with confidence in part because the subway is run, and its fares and service are set, by a public agency.

This is the kind of argument that cities and robotaxi developers will need to make. Residents will need to be confident that robotaxis will take them almost everywhere they would want to go in the region, that they run twenty-four hours a day and seven days a week, that the fare is low and varies predictably with demand, and that the wait for a ride is usually not long.

But the critical difference is that robotaxis will not necessarily be run by a government. If they are profitable, then they will attract corporations—or even just one monopolist—aiming to maximize profits. How could these companies be trusted not to take advantage of riders?

One solution to this problem is to bring robotaxis under public ownership. Another solution is to regulate robotaxi companies as utilities. Either solution would provide reassurance about service coverage, fares, and wait times. But they would do so at the cost of reducing competition and innovation.

We think it is possible for regulation to protect the public from monopoly abuse while still promoting competition. We propose transparent and rider-neutral fares and proactive planning for emergencies and other contingencies.

Transparent and Rider-Neutral Fares

In a competitive market, robotaxi companies will be price takers. They will charge the fare that other robotaxi companies are charging or lose market share. But in a concentrated market, robotaxi companies may engage in price discrimination. They may offer each rider an individually tailored fare just below their willingness-to-pay, so they can extract more surplus from riders who are willing to pay higher fares. And robotaxi companies may be able to make informed predictions about what each rider would be willing to pay based on data about their past choices or the choices of similarly situated riders.

This is what has happened in the TNC market. Uber’s increasing profitability has been fueled by increasing algorithmic price discrimination—sometimes called “personalized” or “surveillance” pricing.³²⁰

Price discrimination is not necessarily undesirable. In fact, if consumers are perfectly informed and perfectly rational, it can be economically beneficial.³²¹ A company that tailors its prices to individual customers will serve more customers than a company that charges every customer the same price. In economic terms, the price discriminating company expands output. These gains, though, come with complicated distributive effects.³²² Price discrimination transfers surplus from consumers to producers (and their shareholders), which can be a regressive transfer of wealth. But if low-income riders are more price-sensitive than high-income riders, price discrimination might benefit them by providing them with an individually-tailored fare that is lower than an untailored fare might be. From a social welfare perspective, it is hard to know whether the costs of price discrimination outweigh the benefits.

In general, the law does not ban price discrimination. Companies are free to tailor their prices, and customers can accept or reject them. But there’s always been one important exception to the general tolerance of price discrimination: the monopolization of a necessary good or service. The classic example is from the transportation industry: railroads.³²³ Suppose that a farmer needs to transport perishable crops to market and that the only feasible means to transport them is a railroad controlled by one company. If the railroad knows this and can discriminate on price, it will extract almost all the value of the crop, even if it results in the farmer suffering a net loss. In the moment, the farmer will still take the deal because the losses would otherwise be greater. But a farmer who anticipates the temporary monopoly trap will not grow the crop in the first place.

Now come back to robotaxis. A robotaxi company’s pricing algorithms may be able to infer which riders have given up their personal motor vehicles. A rider with access to a personal motor vehicle will have a relatively elastic demand for robotaxi rides. When the fare rises too high, they will drive instead. A rider without access to a personal motor vehicle will have an inelastic demand. When the fare rises, they will grudgingly pay it. An individual rider’s behavior—how often they see a fare and decide not to request a ride—will indicate whether they have alternative means of travel. And a robotaxi company with market power will charge the riders with no alternatives a higher fare. Riders who anticipate this trap will not want to give up their personal motor vehicle.

Common carrier regulation responds to the problem of temporary monopolization. As we saw in Part I, taxi regulation combined universal service, fare regulation, and restricted entry.³²⁴ The idea behind universal service was that every rider should receive the same service for the same per mile fare. Transportation companies could not engage in price discrimination. The problem with common carrier regulation, however, was that companies could not compete by offering lower fares. So they had little incentive to cut costs or innovate.

Policymakers should protect riders by requiring robotaxi companies to have transparent and rider-neutral fares. By “transparent fares,” we mean that robotaxi companies must submit the fare they charge for each ride to a public regulator. In California, the CPUC is already requiring robotaxi companies to submit basic information about each ride request and each ride, including the origin and destination points, the VMT during the ride, and the deadheading VMT before the ride.³²⁵ We would have companies submit one more data point: the fare charged.

By “rider-neutral fares,” we mean that robotaxi companies may not use data about an individual rider’s past choices in setting fares. They must charge the same fare to every rider requesting a ride from the same origin to the same destination under the same demand conditions. A company’s pricing algorithms may include the distance to be traveled and the expected deadheading miles to be traveled as a result of providing the ride. But pricing algorithms should not include information about the individual rider’s willingness to pay or any information that could be used as a proxy for the individual rider’s willingness to pay.

Transparent and rider-neutral fares would prevent robotaxi companies from engaging in price discrimination. A rider who gave up their personal motor vehicle would pay the same fare as a rider who kept theirs. And regulators would be able to track compliance easily. They could analyze the fare data to verify that rides with similar origin and destination points at similar times had similar fares. Rider-neutral fares would not mean that every rider pays the same per mile fare. Fares could still vary with travel demand, so regulation wouldn’t subsidize sprawl.

Unlike common carrier regulation, transparent and rider-neutral fares wouldn’t foreclose price competition. A new entrant would be free to enter the market and undercut the incumbent’s fares. In fact, transparent pricing might facilitate entry by letting a prospective entrant know what kind of fares

it would need to offer to be viable. The possibility of entry would preserve incentives to cut costs and innovate.

We anticipate three objections. First, it might be argued that transparent fares will facilitate tacit collusion. Robotaxi companies might find it easier to coordinate on an oligopoly fare if they knew exactly what their competitors were charging for every ride. We think that is right, but we doubt it will make much of a difference. Without transparent fares, robotaxi companies could simply collude, intentionally or unintentionally, through forms of direct or indirect algorithmic coordination.

Second, what if robotaxi companies replace individualized price discrimination with microtargeted group price discrimination? A robotaxi company could, for example, take into account historical demand in small geographic areas when setting fares. Your fares might not rise because you give up your car, but because your neighbors gave up their cars. We acknowledge that there’s a difficult tradeoff between the benefits of demand-variable pricing and the psychic costs of microtargeted price discrimination. It might make sense to limit the granularity of demand-variable pricing to census tracts or neighborhoods.

Third, what if one robotaxi company monopolizes the industry and just raises its fares across the board? The simple answer is that the high fares will attract other companies to enter the market—especially since those fares will be transparent and lock-in contracts will be banned. But this is not a complete answer because the combination of network effects and the high, fixed costs to enter the market may still slow entry, and high fares could cause hardship unless and until another company enters the market.

We would have policymakers use the credible threat of utility regulation to prevent abuse. Legislators could give regulators statutory authority to set fares if they deem it necessary to ensure affordable mobility. If a robotaxi monopolist raises its fares under a system of transparent and rider-neutral fares, everyone would be able to see that fares are rising, and a large portion of the population would have a stake. Regulators could then propose fixing fares. If the robotaxi monopolist took the hint and reduced its fares, problem solved. If it didn’t take the hint, regulators could impose more aggressive utility regulation. But we think utility regulation should be a last resort if competition does not lead to adequate service at acceptable fares.

Emergency Planning

One emotionally salient advantage of personal motor vehicle ownership is the perception of mobility during emergencies. If the forecast says you are in the path of a hurricane, you can board up the windows, pack your bags and pets, and drive to safety before the storm hits (assuming you can find a place to fuel or charge your car). Even if the chance of an emergency that would require evacuation is slim, knowing that you could escape might give you peace of mind. Robotaxi regulation needs to provide the same peace of mind as personal motor vehicle ownership.

San Franciscans now have good reason to worry that robotaxis will not be available in emergencies. On December 20, 2025, a fire at a Pacific Gas & Electric substation caused a widespread blackout.³²⁶ In large parts of the city, traffic lights went dark.³²⁷ Many of Waymo robotaxis stopped in the middle of the street, and some got stranded in intersections, blocking traffic.³²⁸ Waymo suspended its service and didn’t resume operation until the following day.³²⁹

Emergencies—including ones far greater than a blackout—could create many challenges: drastic changes to road environments, loss of communications, overwhelmed remote assistants and retrieval crews, mass dependency on robotaxis, and stopped automated vehicles becoming obstructions.

In the absence of regulation, robotaxi companies will have insufficient incentives to prepare for emergencies. As we saw above, they will likely maintain fleets with fewer vehicles than would be socially desirable in an emergency.³³⁰ A profit-maximizing robotaxi company will set the number of vehicles in its fleet by calculating when the marginal revenue gained by adding another vehicle would surpass the marginal cost. A fleet large enough to serve peak demand may include many vehicles that would sit idle during periods of average demand. The cost of storing, maintaining, and cleaning the vehicles that would be used only during peak demand could outweigh the revenue that they would generate.

Demand-variable pricing partially mitigates this problem. If a company can charge a higher per mile fare in peak demand, a larger number of vehicles will generate enough peak demand revenue to offset the losses in periods of average demand. But peak demand in non-emergency situations—the Tuesday morning rush hour—may still be a fraction of peak demand in an emergency.

More importantly, robotaxi companies will not be able to set fares at market prices in some emergencies because of “price-gouging” laws. Price-gouging is a special case of demand-variable pricing. In an emergency, demand for certain goods—water, food, gasoline—can spike. Sellers can temporarily raise their prices—sometimes exponentially—and profit from the increased demand.

Most states have enacted statutes that ban price-gouging. For example, a California statute provides that, if the government declares a state of emergency, a business may not raise the price of certain essential goods and services more than ten percent above the price it was charging before the emergency.³³¹ The statute contains an exception that lets a business increase its price above that level if it can “prove that the increase in price was directly attributable to additional costs” it had to pay as a result of the emergency and the price is not more than ten percent “greater than the total of the cost to the seller plus the markup customarily applied by that seller for that good or service.”³³²

The basic intuitions behind price-gouging laws are about fairness.³³³ Sellers should not be able to take advantage of buyers in temporary monopoly situations: the gas station should not be able to charge you $100 a gallon as you are fleeing the storm. Fairness also suggests that the rich should not be able to hoard scarce necessities: in a pandemic, ventilators should be available to more than just billionaires.

Although price-gouging laws are popular with legislators, they are unpopular with economists. There are three standard criticisms. First, they reduce sellers’ incentives to stockpile inventory to prepare for emergencies and to increase production during emergencies.³³⁴ Second, they encourage consumers to hoard rather than just buying what they need.³³⁵ Third, they allocate goods and services to buyers who show up first instead of buyers with a higher willingness to pay (plus, of course, the actual ability to pay).³³⁶

Repealing price-gouging laws—or exempting robotaxi companies from those laws—would create an incentive to maintain larger fleets for emergencies. But this salutary incentive must be weighed against the cost to peace of mind: people who fear that they will be price-gouged in an emergency will be less likely to give up their personal motor vehicles.

Policymakers can instead solve the problem of robotaxi service in emergencies by ensuring that the industry as a whole maintains a fleet that is sufficient to serve the state’s emergency plans.³³⁷ Emergency management officials could determine the overall size of the fleet. Then robotaxi regulators could periodically apportion responsibility to individual companies according to their market share. The fleet would need to be “available”—ready to deploy on demand. The state could provide a subsidy to each company equivalent to the loss they incur from maintaining these additional vehicles. Alternatively, regulators could create incentives that reward dynamic expansion capacity. This extra capacity might simply include more robotaxis. But it could also include ready and reliable access to buses and, if those buses are conventional, human drivers.

In some emergencies, public authorities need to mandate evacuation. If a significant portion of the population relies on robotaxis, robotaxis need to be part of the evacuation plan. Emergency management officials should be given the authority to temporarily control how robotaxis are deployed in an evacuation. Robotaxi companies should be required to prioritize ride requests within an evacuation zone and to offer evacuation rides for free. Public authorities can reimburse the companies for the cost of providing the service.

Emergency management officials and robotaxi regulators should not wait until an emergency arises to verify if robotaxi companies can meet their obligations. They should require that robotaxi companies—as well as providers of automated driving for personal motor vehicles—participate in simulations in which they test how companies would respond to different types of emergencies. These simulations would serve as an audit to confirm that robotaxi companies maintain a sufficiently large available fleet and have robust break-the-glass operational plans that account for abnormal roadway conditions, disrupted connectivity, staffing shortages, and other logistical impediments.

These simulations should highlight details that might otherwise be overlooked. Will the kind of all-electric fleet that we encourage in this Article suffice in an evacuation? Will robotaxis still function if roadways become unidirectional, if thousands of officers are manually directing drivers at hundreds of intersections, if debris or water is covering roads, and if communications are down (or if remote assistants are overwhelmed)? If not, will these vehicles block roads in a way that further stymies evacuation and emergency response? Careful emergency planning will help build confidence that it is safe to live without owning a personal motor vehicle.

IV. Redesigning Mobility

It is easy to envision how robotaxis might fail as a business.³³⁸ They might not achieve an acceptable level of safety or a sufficiently lucrative ODD. They might not become cheap enough to compete with traditional taxis and TNCs. They might successfully compete with these modes in high demand areas but not provide a service that is convenient or reliable enough to replace personal motor vehicles. Indeed, as personal motor vehicles have generally proven more popular than taxis in many parts of the country, automated personal motor vehicles may prove to be more popular than robotaxis.

But what if robotaxis succeed as a business? What if they become sufficiently safe, convenient, reliable, and affordable that they serve the mobility needs of most of the residents of some metropolitan areas? That would create the opportunity to redesign our transportation system. This topic merits its own article. Here we just touch briefly on three issues: liberating land, refocusing transit, and expanding access.

A. Liberating Land

Most U.S. cities are oriented around the automobile. Even in the densest neighborhoods, some of the most valuable land is used for parking lots and garages. Most streets are designed to prioritize automobile use—more lanes for motor vehicles and curbside parking, less space for the cyclists and pedestrians who are relegated to both the literal and the metaphoric margins of the transportation system. And only a few U.S. cities have mass transit that serves enough of the travel demand with enough frequency, speed, and reliability to compete with personal motor vehicles.

Urban planners have long argued that cities do not have to be like this. Tokyo’s transit is so fast, frequent, extensive, and reliable that the city has about 0.32 motor vehicles per household. Copenhagen’s streets are so safe and convenient for cyclists and pedestrians that 49% of commuters travel by bike. And in New York City, despite decades of neglect, the subway is still useful enough that 56.7% of households do not own a car.³³⁹ It is important to recognize that space is a limiting factor: if cars had more space, there would be more cars.

Some urban planners are skeptical about the deployment of automated vehicles (including personal motor vehicles as well as robotaxis) precisely because they think automated driving will entrench the automobile, set back fragile gains for cyclists and pedestrians, and undermine support for transit. And some of their fears are grounded in facts. For over a decade now, pundits have been invoking a self-driving future to oppose investments in other modes of transportation.³⁴⁰

We think that robotaxis have the potential to preserve what people like about the automobile without requiring cities to revolve around the automobile.

Cities could start by changing the economics of parking. As many have explained, free parking is at the root of many urban problems, from the high cost of urban construction to suburban sprawl.³⁴¹ In recent years, some states and cities have repealed laws that mandated a minimum number of parking spaces for certain land uses. But in most cities, politicians are reluctant to abolish parking requirements or charge a market price because many of their constituents rely on personal motor vehicles. And those vehicles spend most of the day in parking.

Robotaxis will spend most of their days moving, so the companies that own them can maximize their revenue. Even overnight, robotaxis can be used to transport goods. When robotaxis stop for charging, cleaning, and maintenance, they can be compactly stored on private property.³⁴² If robotaxis succeed, much of the urban land we currently devote to parking lots and garages can be converted to apartments, stores, and parks.

If people have access to a wide range of robotaxis, they will no longer need to own a single vehicle that does everything and goes everywhere. If you need (or believe that you might at some point want to use) a pickup truck, then you might buy a pickup truck. And once you own it, especially if you own no other motor vehicles, you will expect to be able to drive it and park it everywhere. But if you have access to a robotaxi truck or can take a reliable robotaxi to reach a conventional truck located outside the city, then it may not be necessary to drive your own truck everywhere. This may give communities much more flexibility in reimagining themselves.

Redesigning streets is key.³⁴³ Robotaxis will not need to park at the curbside—though they will need space to pull over to pick up and drop off riders. Robotaxis may also be able to serve the same travel demand with a smaller fleet—especially if they become as familiar as an elevator. This could give cities an opportunity to reclaim street space for protected bike lanes or wider sidewalks. And robotaxis are likely to be friendlier to cyclists and pedestrians in a way that could facilitate living streets with mixed modes.

B. Refocusing Transit

Cities could also rethink how they invest in transit. An important advantage of transit is throughput. More people can fit on a subway car or a bus than in a set of cars that occupy the same space.³⁴⁴ Far more commuters in New York can travel from Harlem to Midtown at rush hour on the subway under Lexington Avenue than in traffic on the street above it.

Robotaxis might not change the logic of throughput. It is possible that robotaxis could increase vehicle capacity (if the vehicles have closer lateral and longitudinal spacing, smoother flows, or fewer crashes) and otherwise increase person capacity (if people share rides). They likely will not, however, compete with the Lexington Avenue subway in the foreseeable future.

But most transit in the United States is not like the Lexington Avenue subway, which runs with two-minute headways at rush hour. Some transit agencies operate buses or trains that run every half hour or less. Some run buses that are mostly empty—and that may be stuck in congestion caused primarily by single-occupant vehicles. Some of these low-throughput transit lines may be justified given the realistic alternatives, but it is possible we can do better.

If robotaxis are cheap enough to replace personal motor vehicles, they may be able to replace low-throughput transit lines—provided that policymakers continue to subsidize low-income riders who relied on those lines.

C. Expanding Access

Mobility creates positive externalities. We benefit not just when it is easier for us to travel, but when it is easier for our friends, family, and coworkers to travel—provided that the negative externalities are managed. Current transportation policy is full of subsidies, both obvious and hidden. Many of those hidden subsidies perversely encourage personal motor vehicle ownership,³⁴⁵ but some are worth keeping. If robotaxis start to replace other modes of travel, to what extent should governments subsidize robotaxi rides for those whose mobility needs would not be adequately served by the market? We consider three issues: people with low incomes, people with disabilities, and sparsely populated areas.

People with Low Incomes

The case for subsidizing the mobility of people with low incomes is straightforward. Mobility enables economic opportunity, educational advancement, and civic participation. Targeted mobility subsidies can reduce economic inequality and increase social mobility.

Existing policy subsidizes the mobility of low-income people with both implicit and explicit subsidies (while, in other ways, increasing the price of that mobility). The implicit subsidy is providing transit to the general public at fares below the cost of providing the service.³⁴⁶ Everyone can benefit from the low fares, but riders with modest incomes may benefit the most. The explicit subsidy is providing discounted fares for low-income riders.³⁴⁷ (The price increase comes in part from the land use policies, discussed above, that push low-income people far away from city centers.)

A subsidy designed to improve the living standards of low-income people raises the question: is a targeted subsidy superior to an unrestricted cash transfer? An unrestricted cash transfer respects autonomy by letting recipients decide for themselves how they want to allocate their budget. They might want to spend less on transportation than their share of a mobility subsidy would provide. A targeted subsidy would distort spending away from what some recipients would prefer.

We acknowledge the force of the critique, but we think targeted mobility subsidies to low-income people are smart politics. Unrestricted cash transfer programs are hampered by the (likely false³⁴⁸) perception that the recipients will squander the money. One critical advantage of transportation subsidies is that voters understand that transportation is a necessity, so they can trust that the money will be put to good use.³⁴⁹

Legislators should enact a means-tested subsidy for robotaxi service. The right time to adopt this subsidy is when robotaxis start to replace low-throughput transit. Low-income people who relied on those routes will need a substitute, and robotaxi fares may be higher than transit fares. A similar argument can be made for low-income people who rely on personal motor vehicle ownership at the time that on-street parking becomes less available or more expensive. They may not be able to afford the increased cost of private parking, so subsidized robotaxi service may be the only realistic replacement. Even a modest subsidy could be consequential for the mobility of people with limited means.

People with Disabilities

For people with disabilities, subsidies need to take a different form. At the outset, it is important to recognize the incredible diversity among people with disabilities. A person who is blind may have very different mobility challenges than a person who uses a wheelchair. People who use wheelchairs may also have very different mobility challenges depending on their other abilities (such as significant upper-body strength and agility) or disabilities (such as deafness or mental impairment).

So, we might start—but cannot end—this discussion with people who use electric mobility scooters or other devices that cannot easily get or fit into conventional vehicles. They need access to spacious vehicles with a ramp or a lift, sometimes called Wheelchair Accessible Vehicles (“WAVs”).

As we mentioned in Part I, California has attempted to expand mobility by requiring TNC riders to contribute five cents per trip to the TNC Access for All Fund.³⁵⁰ The CPUC is directed to distribute those funds to businesses or nonprofits that provide transportation to people with disabilities, especially people who require a WAV.³⁵¹ A TNC can avoid charging the fee if the CPUC determines that it is providing a sufficient level of WAV service.³⁵² And the CPUC can also offset the amount due by the amount a TNC invests in improving its WAV service.³⁵³

The introduction of robotaxis creates an opportunity to redesign vehicles to make them more accessible. It may be feasible to require that all robotaxis be WAVs. Then regulators would not have to monitor the level of service provided to people with disabilities, as the CPUC is doing now. They would receive the same service as everyone else—that is, unless they need the assistance that bus, paratransit, and taxi drivers often provide as an official or unofficial part of their jobs.

It is possible, though, that the cost of making every robotaxi a WAV will prove prohibitive. In that case, legislators could adopt a policy like California’s. Either taxpayers generally or robotaxi and TNC riders specifically could contribute to a public fund. Then regulators could offer those funds to companies that operate WAVs. The downside of this approach is that regulators would need to monitor service levels to make sure that riders who need WAVs aren’t enduring unreasonable waits.

NHTSA can encourage the development of accessible robotaxis today. As we saw in Part I, companies introducing automated vehicles that do not meet NHTSA’s Federal Motor Vehicle Safety Standards need an exemption from the agency.³⁵⁴ NHTSA could announce that it will prioritize exemption requests for automated vehicles that are also WAVs³⁵⁵—a small step that nonetheless may have an important signaling effect. That might persuade some ADS developers to experiment with more accessible vehicle designs. And, if and when it is clear that accessible robotaxis are financially viable, regulators should mandate them.

Sparsely Populated Areas

The case for subsidizing mobility in sparsely populated regions is more complicated. Policymakers have long sought to diminish geographic disparities in the availability and price of transportation service. In taxi regulation, the combination of entry restrictions and universal service requirements ensures that the profits taxis make in high demand areas cross-subsidize service in low demand areas.³⁵⁶ Transit budgets often work similarly. Very few transit lines manage to break even on farebox revenue alone. But that revenue plus subsidies based in part on ridership numbers support less popular routes in sparsely populated areas.³⁵⁷

In the absence of subsidies, robotaxis are more likely to be deployed—and likely to be cheaper on a per mile basis—in places with high travel demand. This dynamic plays out on two levels. On a local scale, robotaxis are likely to be cheaper in cities than in their surrounding suburbs and exurbs. On a national scale, robotaxis are more likely to be deployed in large metropolitan areas than in smaller metropolitan areas or rural areas.

The policy case for local, place-based subsidies is weak. If the deployment of robotaxis reduces the absolute per mile cost of travel, it will increase demand for longer trips. That could facilitate commutes to city centers from suburbs and exurbs and shift development to places where it will have a greater environmental impact. This is how robotaxis might encourage sprawl.³⁵⁸

But that analysis is incomplete. Even if actual and perceived travel costs were to decline overall, shorter trips in densely populated areas are still likely to cost less than longer trips in sparsely populated areas. Robotaxis might also enable “distributed density”—more dense pockets of development within already urbanized areas—if land use regulation can be liberalized to allow it.³⁵⁹ If, however, a government attempts to equalize the per mile cost of travel, it will be effectively subsidizing sprawl.

It might be argued that local, place-based subsidies will help low-income neighborhoods. In some U.S. metropolitan areas, average incomes are higher in the city than in the surrounding suburbs and exurbs. But if the policy goal is subsidizing mobility for low-income people, the most efficient intervention is means-based subsidies, not place-based subsidies.

There may, however, be a political justification for local, place-based subsidies. If cities make driving or parking more expensive, they may face opposition from suburban commuters. The opposition might be particularly intense if suburbanites pay much higher per-mile fares for robotaxis and are thus less willing to replace their personal motor vehicles. In that case, place-based subsidies could be a kind of compromise: suburbanites give up their cars, and in exchange they get cheaper robotaxi service. But the cost of the compromise is encouraging sprawl.

The case for subsidies at the national level is different. In the absence of subsidies, large metropolitan areas might switch to robotaxis while smaller metropolitan areas and rural areas remain dependent on personal motor vehicles. If the primary advantage of robotaxis is economic, this might be an acceptable outcome. Even the most zealous transit advocates do not call for subways to be built under Topeka, even though it might expand mobility. But we can see a case for subsidizing robotaxis in less dense regions if robotaxis provide other benefits and if subsidies provide an important and preferably temporary boost over a critical adoption hump.

More broadly, these risks and opportunities are also why we advocate for more holistic and whole-stream approaches, such as a carbon tax that is collected and rebated per capita, that empower people to make their own choices while simultaneously reducing the externalities that distort those choices.

Conclusion

We recognize that some advocates are skeptical about robotaxis.³⁶⁰ They have been working to build a transportation system that relies less on cars and more on walking, biking, and mass transit. They worry that the deployment of robotaxis will undermine those efforts and entrench the automobile. And they do not want the transportation system to privilege the interests of large automakers and other tech companies.

We share these concerns. We recognize what Zipcar’s founder has described as a choice between “heaven or hell”³⁶¹—and the many gradations between those two extremes. Automated driving is like the internet: a tool that opens up possible futures, some better and some worse.³⁶² Its use can and should be subjected to democratic control. With careful regulation, the introduction of robotaxis can liberate cities from the worst effects of the automobile—and thereby save lives, expand mobility, and make cities more livable.

99 S. Cal. L. Rev. 603

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Bryant Walker Smith* & Matthew T. Wansley†

* Associate Professor of Law and Engineering, University of South Carolina.
† Professor of Law, Cardozo School of Law. We thank Amitai Bin-Nun, Hannah Bloch-Wehba,
Jill Fisch, Eric Goldwyn, Phil Koopman, Mark Lemley, Jared Mayer, Gerard Magliocca, Michael Pollack,
David Schleicher, Ganesh Sitaraman, Stew Sterk, Brad Templeton, Marshall Van Allstyne, William
Widen, Katrina Wyman, Jinhua Zhao, and participants at the 2025 American Law and Economics
Association Annual Meeting and the 2025 MIT Mobility Initiative Vision Day for helpful suggestions.
We thank Camila Schaulsohn for her valuable research assistance and the editors of the Southern
California Law Review for their thoughtful editing.

Bridging the Gap: Modernizing Civil Rights Laws Through Transgender Healthcare Statutes

April 2026April 2026Sahna Das*

The past few years have seen record-breaking numbers of anti-transgender bills introduced and passed in state legislatures, many of which restrict transgender healthcare. In light of these bills, the varying outcomes from trans rights litigation in the courts, and President Trump’s anti-trans executive actions, it is worth reevaluating the state of trans healthcare protections. The majority of scholarship on trans rights discusses if and how sex discrimination doctrine can be leveraged to secure trans rights, including access to gender-affirming care. However, the complex and mosaic-like nature of sex discrimination doctrine leaves gaps within which judges holding anti-trans bias can insert their own agendas. This Note suggests a different path: rather than leaving trans rights up to the whims and biases of judges or letting the executive branch encroach upon the legislative branch’s authority to regulate commerce and healthcare, Congress should pass new civil rights statutes establishing LGBTQ+ status as a basis for discrimination claims. In particular, Congress should pass a healthcare statute prohibiting discrimination on the basis of transgender or nonbinary status in the coverage and administration of healthcare services. Such a law would provide an additional or alternate cause of action in trans healthcare cases where judges misapply or fail to apply sex discrimination analysis.

INTRODUCTION

For transgender people in the United States, daily life is becoming increasingly fraught with danger. The past decade has seen the growing recognition and visibility of transgender identity, the passage of state-level protections of trans rights, and historic victories for LGBTQ+ equality in both state and federal courts. However, the tide is now turning, and transgender people have become the center of a burgeoning culture war—they have been marked as a social contagion,¹ accused of grooming children,² scapegoated for violence,³ and characterized as a domestic terrorist threat.⁴

Since 2020, the proliferation of anti-trans legislation at the state level has dramatically escalated, particularly in the area of trans healthcare.⁵ The states have been even further emboldened by the Supreme Court’s 2025 decision in U.S. v. Skrmetti,⁶ which upheld a Tennessee law restricting gender-affirming care for trans minors. As the anti-trans moral panic reaches a fever pitch, the attack on trans healthcare has moved from the states to the federal level under President Trump’s second administration.⁷ This Note thus discusses the current war on trans rights, focusing on the stripping of access to trans healthcare.

This Note will use the terms “trans healthcare” and “gender-affirming care” (“GAC”), which “refers to health services that support a person in living in alignment with their gender identity when their gender identity differs from their sex assigned at birth.”⁸ These “treatments are considered evidence-based and typically follow standardized practice protocols”⁹ and are widely supported by medical consensus.¹⁰ Limiting such care can and will have disastrous consequences.¹¹

Access to gender-affirming care is frequently litigated under sex discrimination doctrine, a strategy that has achieved great success. However, this success relies upon judges who apply sex discrimination doctrine in a principled manner. This Note suggests that, in light of the second Trump administration’s actions, the varying results of GAC litigation, and the Supreme Court’s troubling foray into the debate,¹² current law and sex discrimination doctrine are not enough to protect trans healthcare, and new strategies must be pursued.

This Note proceeds in three parts. Part I provides background on the sharp spike in anti-trans legislation in recent years and discusses how the overreach of executive power under President Trump’s second administration has fanned the flames of a growing anti-trans movement in the United States. Part II examines the role of the judiciary in addressing trans rights, exploring how the courts have expanded these civil liberties through principled interpretations of current federal law and sex discrimination analysis. This Part then argues that, despite these victories, the viability of these arguments is narrowing, and the limits of sex discrimination doctrine cannot be overcome through reliance on the courts. Part III argues that, given the risks of leaving this issue up to the executive or judicial branch, Congress is best suited to protect gender-affirming care. This Part proposes that Congress pass new federal legislation to cement LGBTQ+ status as a basis of discrimination, specifically passing a healthcare statute prohibiting discrimination on the basis of transgender or nonbinary status. This Part will also discuss how Congress can tailor this statutory scheme to overcome to the implications of the Court’s ruling in Skrmetti.

Given the current makeup of Congress, this Note does not pretend to suggest that such legislation will be passed in the foreseeable future. It does suggest, however, that the status quo is dangerous, unstable, and will cause irreparable damage to trans people, their loved ones, and anyone who pushes the boundaries of free expression. As this Note will demonstrate, Congress is the branch best suited for the action necessary to protect trans rights. If—and when—a Congress with the political will to protect trans rights emerges, the question is what path it will take to do so. This Note offers one such path.

I. ANTI-GENDER IDEOLOGY AND THE NEW SCOPE OF EXECUTIVE POWER

A. The International Growth of “Anti-Gender Ideology”

Opponents of trans rights often cite “gender ideology” as the catalyst for the increasing visibility of trans people in social and political life. This Note refers to the “social movements mobilizing opposition to what they call ‘gender ideology,’ ‘gender theory’ or ‘genderism’ ”¹³ as “anti-gender ideology movements.” Such movements have gathered power over the past few decades, opposing various concepts that they view as undermining “ ‘traditional’ ” social units—including “the rights of LGBTQ+ people, ‘reproductive rights, sexuality and gender-sensitive education in schools, and the very notion of gender.’ ”¹⁴ Across the world, “the attack on ‘gender ideology’ is as much an attack on feminism, especially reproductive freedom, as it is on trans rights, gay marriage, and sex education.”¹⁵ The United States is materially implicated in the global anti-gender network, as “US-based anti-gender groups such as Alliance Defending Freedom, the Federalist Society, the Cato Institute, and the Heritage Foundation pump millions of dollars into global campaigns” against so-called gender ideology.¹⁶

Trans people constitute a tiny minority; in the U.S., only one percent of the population identifies as trans.¹⁷ Given the small number of trans people, why is gender such a galvanizing force? Judith Butler argues that “ ‘gender’ absorbs an array of fears and becomes a catchall phantasm for the contemporary Right,” creating a moral panic and manifesting as an existential threat.¹⁸ After all, the “very existence of transgender and non-binary individuals poses a threat to the traditional (fixed, binary, hierarchical) gender order.”¹⁹ The panic over trans people becomes a funnel for “a broader backlash against LGBTQ equality and an assault on many of the feminist gains wrought by the women’s movement since the 1960s and ’70s.”²⁰ Such reactionary sentiment is not new—“backlash politics and jurisprudence have emerged as a response to the gains of different marginalized social groups at various points in time, including women, people of color, and sexual and gender minorities.”²¹

The trans rights issue has become a way for conservative lawmakers to rile up their base, “perform opposition to the ‘woke left’ and ensure evangelical voters show up to vote,”²² especially now that the question of same-sex marriage and gay relationships has largely faded as a hot button political issue.²³ For example, many state bills banning trans girls from women’s sports “are the product of national right-wing strategists, having found that this particular issue has traction to elect and empower Republicans in electoral politics.”²⁴

Anti-gender ideology is not, however, limited to traditional conservatives. The moral panic has been fueled by both mainstream conservative and liberal media outlets, which have “reinforced the anti-trans movement’s unscientific ‘child protection’ claims, sensationalized them, and profited from the resulting panic.”²⁵ A re-fashioned narrative of sexual deviancy—echoing decades of anti-LGBTQ+ propaganda—has emerged,²⁶ often obscured under a politically neutral veneer of protecting children’s health and women’s safety. In recent years, “a relatively small but vocal group of self-proclaimed ‘gender-critical feminists’ (who are sometimes called trans-exclusionary radical feminists, or ‘TERFs’ for short) eschew transgender legal rights that they perceive as potentially threatening to the rights of cisgender women.”²⁷ The debate between the faction of gender-critical feminists and the majority of feminists—who see trans rights as a necessary component of the feminist project²⁸—goes back decades, to “the height of the second-wave feminist movement.”²⁹ With the increasing visibility of trans people and the rising prominence of high-profile trans-exclusionary feminists like author J.K. Rowling,³⁰ the debate “has become a matter of intense public conflict.”³¹

A deep dive into the extent of the debate between gender-critical feminists and gender-inclusive feminists is beyond the scope of this Note. Nonetheless, this debate is vital to acknowledge because it has significant political and legal consequences that have contributed to the rise in anti-trans sentiment and policy.³² Gender-critical feminists center biology as the sole determinant of sex and believe that “as a result, transgender women are really men ‘who should not be allowed to use women’s facilities’ ” because they will assault cis women in these facilities.³³ Such narratives feed into the “bathroom predator myth,” perpetuating the false claim that trans women are a threat to cisgender women in sex-segregated spaces like public restrooms.³⁴ This myth echoes the “fears of sexual predation” that have been historically invoked to paint gays, Black men, and Jewish people as violent threats to women and children.³⁵ Moreover, it belies the reality that there is “no evidence of increased harms to people who are not transgender when transgender people are allowed to use restrooms and other gendered facilities

according to their gender identity,” but “it is a consistent finding across studies and over time that transgender people report . . . experiencing verbal harassment and physical assault from others in these spaces.”³⁶

These myths also harm gender non-conforming cisgender women who are “harassed in bathrooms because of anti-transgender hysteria,”³⁷ as in the case of eighteen-year-old Gerika Mudra, a cisgender girl who was followed into a restaurant by a server who accused her of being a man.³⁸ Mudra felt compelled “to prove to the server that she is a woman, so she unzipped her hoodie to show she has breasts.”³⁹ Gender-critical feminists seem to overlook these incidents, which exemplify how trans people and feminists share common concerns and principles such as the right to bodily autonomy and expression outside of traditional gender norms.⁴⁰ Gender-critical feminism feeds into the anti-gender movements pushed by the Right by calling such principles into question. This rhetoric provides fodder for right-wing critiques of “gender ideology,” which push similar narratives of a spectral threat to women and children’s safety as a shield for limiting both transgender and cisgender people’s right to self-determination.

This phenomenon is not merely rhetoric. The growth of gender critical feminism and anti-gender ideology reflect shifting public opinion in the United States. Within just the past four years, “Americans have become more supportive of laws that limit protections for trans people—and less supportive of laws aimed at safeguarding them.”⁴¹ This sentiment is reflected in the recent wave of anti-trans legislation passed at the state level.

B. Trans Rights at the State Level

Several hundred anti-trans laws have been proposed in states across the country in recent years. Journalists in 2022 noted that “[s]chools [had] emerged as the front line for anti-trans legislation,” with several states successfully passing bans on trans children in sports, parental disclosure laws, and curriculum restrictions.⁴² Bathroom bills, which were thought to have lost steam after North Carolina’s failed 2016 attempt to ban trans people from public restrooms that do not correspond with the sex listed on their birth certificate, have made a comeback.⁴³ In the years since, states have restricted discussion of gender and personal pronouns in schools,⁴⁴ prohibited or placed significant restrictions on the ability to change gender markers on ID documents,⁴⁵ and passed restraints on free expression through drag bans.⁴⁶

The rate of these attacks is accelerating. The ACLU tracked 616 anti-LGBTQ+ bills in 2025,⁴⁷ up from 533 in 2024,⁴⁸ and 510 in 2023.⁴⁹ Other advocates focusing specifically on anti-trans legislation have found that 2025 was the sixth consecutive record-breaking year in anti-trans bills considered across the country, with trans healthcare becoming an increasingly targeted category.⁵⁰ The majority of anti-trans bills do not become law, but “each year, Republicans introduce more and more bills. And each year, those bills become broader and more extreme, as politicians look for new ways to enforce a binary definition of gender—and that escalation is turning up in the bills that do pass.”⁵¹

One of the main targets of these bills has been gender-affirming care. In 2024, state legislators introduced 189 bills targeting these services, a slight increase from 2023 (in which there were “more bills targeting gender-affirming healthcare . . . than the last 5 years combined”).⁵² Most of these bills are targeted towards transgender and nonbinary minors. As of August 2025, “27 states have enacted laws/policies limiting youth access to GAC.”⁵³ As a result, “40% of trans youth (ages 13–17) live in a state that has enacted a law/policy limiting access to GAC.”⁵⁴

These bills “are devastating. They force trans kids and their families to leave entire states and regions of the country. They exacerbate trans kids’ already alarmingly high suicide rates by withholding necessary medical interventions from them.”⁵⁵ Researchers have found that these bills have inflicted severe psychological harm on trans youth. In states where anti-trans laws were passed, trans and nonbinary young people “experienced statistically significant increases in both the number of past-year suicide attempts and the reporting [of] at least [one] past-year suicide attempt, especially [one] and [two] years after anti-transgender law enactment.”⁵⁶

These bills do not stop at children—a troubling development is the shift towards limiting this healthcare for adults.⁵⁷ The primary means of doing so is through bills that block the use of state Medicaid funds for coverage of gender-affirming care services.⁵⁸ By the beginning of 2025, “[t]en states — Arizona, Florida, Idaho, Kentucky, Missouri, Nebraska, Ohio, South Carolina, Tennessee and Texas—[had] enacted policies that explicitly prohibit Medicaid coverage of gender-affirming care for all ages.”⁵⁹

These state bills have already sowed chaos and confusion among transgender and nonbinary people as well as their families. Under the second Trump administration, such chaos and confusion have now moved beyond the state level to the federal.

C. The Executive Branch and Federal Intervention

Legal scholars and journalists have already noted that President Trump’s actions in his second administration have generated questions about the bounds of executive power. The President has issued “numerous executive orders that pushed at the generally understood limits of presidential power, fired numerous officials and dismantled an agency in clear violation of statutory limits, and frozen spending authorized by Congress without clear authority.”⁶⁰

Among the spate of executive orders, several are directly aimed at erasing trans people from public life. Echoing the anti-gender ideology movement, the executive orders repeatedly invoke “gender ideology” as an enemy to be conquered.⁶¹ Executive Order 14168 declares that it is now “the policy of the United States to recognize two sexes, male and female.”⁶² In line with this reasoning, this Order forces incarcerated trans women to be housed in men’s prisons,⁶³ exposing them to severe risk of sexual assault and abuse.⁶⁴ In addition, the Order prevents trans people from changing the gender marker on their identification documents,⁶⁵ increasing the likelihood of harassment, denial of services, and assault for trans people whose ID lists a name or gender that does not match their gender presentation,⁶⁶ and creating complications for intersex Americans.⁶⁷ Such policies effectively remove trans, nonbinary, and intersex people from legal recognition. The President has also furthered attempts to remove trans people from public life through executive orders banning trans people from the military⁶⁸ and prohibiting participation of trans women in women’s sports.⁶⁹

Of particular significance to this Note is Executive Order 14187, which bans gender-affirming care for trans youth under the age of nineteen.⁷⁰ The order characterizes gender-affirming care as “maiming” children,⁷¹ resulting in “chemical and surgical mutilation” through puberty blockers, hormone therapy, and surgical procedures.⁷² Through this Order, the President promotes false claims⁷³ that trans people who receive gender-affirming care will be “trapped with lifelong medical complications, a losing war with their own bodies, and, tragically, sterilization.”⁷⁴

The President’s authority to issue this order has not been established, and there are serious constitutional questions raised by his attempt to usurp Congress’s commerce powers⁷⁵ to threaten to cut off federal funding to medical institutions that study and provide gender-affirming care.⁷⁶ Nevertheless, some medical institutions have already begun cutting off treatment for trans youth, even if they are located in “sanctuary states” for gender-affirming care.⁷⁷ This preemptive compliance “with Trump’s executive order stand[s] in direct contradiction to state healthcare policies designed to protect access to care. This is a textbook case of institutions surrendering before a fight even begins, bowing to political pressure despite the lack of any immediate enforcement mechanism.”⁷⁸

Despite the disappointing acquiescence of these institutions, legal advocates have not hesitated to push back against this executive overreach—hundreds of lawsuits have already been filed challenging the Trump administration’s executive orders throughout his second term,⁷⁹ including suits challenging Executive Order 14187. Soon after the Order was issued, attorneys general of three states (Washington, Minnesota, and Oregon), joined by three doctors who provide gender-affirming care within these states, sued for declaratory and injunctive relief.⁸⁰ The lawsuit alleges violations of the Tenth Amendment and the Fifth Amendment’s Equal Protection Clause, arguing that the Order discriminates on the bases of transgender status and sex.⁸¹ Moreover, the complaint draws attention to the drastic overreach of executive power effectuated in the Executive Order, noting that the

Order also violates constitutional Separation of Powers by usurping Congress’s legislative powers and exclusive power of the purse. None of the federal funding that medical institutions . . . receive is conditioned on a promise by the institutions that they would deny gender-affirming care to their patients under [nineteen] years of age. Congress has never imposed such a condition, and it is unconstitutional for the President to do so via executive fiat.⁸²

The district court issued a preliminary injunction, and litigation is ongoing.⁸³ More recently, sixteen state attorneys general, joined by Pennsylvania Governor Josh Shapiro (in lieu of Pennsylvania’s Republican attorney general),⁸⁴ brought suit against the Order.⁸⁵ The Complaint argues that the Order violates states’ Tenth Amendment right “to regulate the practice of medicine within their States,”⁸⁶ and “coerce[s] hospitals, individual providers, and others to potentially violate Plaintiff States’ antidiscrimination and age-of-majority state laws.”⁸⁷

Whether the Executive Order survives the legal battle to follow is uncertain. What is certain is that the President has decided to use the force

of the Executive Branch to vilify and erase a small, already vulnerable minority. This erasure is not merely rhetorical—as Butler notes,

when the law names you in a certain way, cornering you into a box, then the force of language actually does create a new situation: a legal status is conferred. In these contexts, a performative use of language brings about the reality that it names. . . . Indeed, when one is called male when one is a woman, or called female when one is a man, the calling is an effacement of what one is. That effacement is an actual effect, a modification of reality, and its own specific form of violence.⁸⁸

The mere existence of trans people is already seen as grounds for violence: research indicates that “[t]ransgender people are over four times more likely than cisgender people to experience violent victimization, including rape, sexual assault, and aggravated or simple assault.”⁸⁹ In addition, among the already high rates of sexual abuse among LGBTQ+ youth, trans children report even more disproportionately high rates.⁹⁰

The inflammatory rhetoric that contributes to high rates of victimization is only escalating under this administration as it takes on the mantle of the anti-trans culture war. Trump has used this issue as a partisan wedge, claiming that Democrats “want transgender for everybody, everybody transgender.”⁹¹ Nonsensical phrasing aside, the core of this framing is dangerous, especially as it is borne out in executive policy considerations. The Trump DOJ has latched onto claims that trans people are a security threat and has considered measures to ban trans people in the United States from owning guns in response to false narratives of an epidemic of trans mass shooters,⁹² a move so extreme that the NRA has publicly expressed

opposition to it.⁹³ Reporting also indicates that the FBI “is preparing to designate transgender people as ‘violent extremists’ in the wake of Charlie Kirk’s murder.”⁹⁴ After Kirk’s killing, Attorney General Pam Bondi claimed that the left is “ ‘putting this crazy ideology in our schools,’ echoing the growing view of many in Trump’s inner circle that a ‘cult of gender ideology’ is behind an explosion of violence by some as yet unidentified ‘radical left,’ ”⁹⁵ despite the complete lack of evidence for such conspiracy theories. As trans people become an increasingly common scapegoat, the United States becomes an increasingly terrifying place for trans people to live.

Regardless of one’s personal beliefs about trans people, it is obvious that the anti-trans moral panic has no basis in reality but plays an outsized role in American politics and culture. Moreover, legal scholars should recognize that the Trump administration’s actions—issuing executive orders that intrude into domains of power relegated to Congress and threatening the constitutional rights of a minority group with no real justification—have significant constitutional implications. As it stands, the Executive Branch poses a significant threat to the lives of trans people, usurping legislative power to do so.

II. THE LIMITS—AND RISKS—OF JUDICIAL INTERVENTION

This Part will analyze the role of another branch of the federal government in the battle over trans rights: the judiciary. Much of the legal scholarship on trans rights thus far has focused on leveraging existing law and utilizing the courts as the main tool to secure protections. This Part will evaluate those arguments and discuss how these protections are at risk of being gutted under the current Trump administration, significantly limiting the courts’ ability to protect trans healthcare. This Part will also discuss the limits of sex discrimination doctrine in achieving large-scale trans rights victories.

A. The Limits of Existing Federal Protections

Two major federal statutory schemes have been utilized to argue for trans healthcare protections: Medicaid and the Affordable Care Act.

Medicaid

Medicaid⁹⁶ is a “system of ‘cooperative federalism,’ ”⁹⁷ jointly funded by the federal government and the states to provide healthcare services to the indigent.⁹⁸ Medicaid requires states to cover medically necessary care. Within the Medicaid Act itself, “[t]he principal statutory basis for the contention that states cannot eliminate coverage for medically necessary services is the general purpose clause,”⁹⁹ which allows Congressional appropriations of funding to enable

each State, as far as practicable under the conditions in such State, to furnish (1) medical assistance on behalf of families with dependent children and of aged, blind, or disabled individuals, whose income and resources are insufficient to meet the costs of necessary medical services, and (2) rehabilitation and other services to help such families and individuals attain or retain capability for independence or self-care.¹⁰⁰

Beyond the statute, federal regulations require state Medicaid programs to cover certain services for Medicaid recipients. While states cannot “arbitrarily deny or reduce the amount, duration, and scope of a required service . . . solely because of the diagnosis, type of illness, or condition” of the beneficiary,¹⁰¹ states do retain a certain level of discretion. State agencies “may place appropriate limits on a service based on such criteria as medical necessity or on utilization control procedures.”¹⁰²

This “medical necessity” criterion has never been officially defined at the federal level for the purposes of Medicaid. Nevertheless, medical necessity “has become a judicially accepted component of the federal legislative scheme.”¹⁰³ The Supreme Court has acknowledged that “serious statutory questions might be presented if a state Medicaid plan excluded necessary medical treatment from its coverage.”¹⁰⁴ As a result, “the medical necessity of the procedure is the touchstone for evaluating the reasonableness of standards in state Medicaid plans.”¹⁰⁵ This could serve as an extremely powerful tool in GAC litigation for Medicaid recipients because the data is overwhelming and certain—GAC is medically necessary.¹⁰⁶ As there are an estimated 276,000 transgender adults enrolled in Medicaid, Medicaid coverage of GAC would be life-saving for a significant number of people.¹⁰⁷

The debate over the merits of this argument goes back decades. For example, in 1980, the Fifth and Eighth Circuits came to opposing conclusions on state Medicaid coverage of gender-affirming care. In Pinneke v. Preisser,¹⁰⁸ the Eighth Circuit held that gender-affirming care could be found to be medically necessary for a Medicaid recipient, and “[t]he decision of whether or not certain treatment or a particular type of surgery is ‘medically necessary’ rests with the individual recipient’s physician and not with clerical personnel or government officials.”¹⁰⁹ The Fifth Circuit came to a seemingly opposite conclusion in Rush v. Parham.¹¹⁰ The court in Rush noted that, although the physician has “the primary responsibility of determining what treatment should be made available to his patients . . . the physician is required to operate within such reasonable limitations as the state may impose.”¹¹¹ This ruling upheld a Florida law that limited physicians’ power by denying coverage for gender-affirming care (which the state believed to be “experimental”), even when the physician approved the treatment.¹¹² The reason for the differing outcomes essentially came down to the question of whether states could provide evidence that these services were experimental, demonstrating the weight of state discretion in Medicaid cases.¹¹³

In the following decades, successful arguments for Medicaid coverage of GAC have often rested on the fact that there is broad medical consensus in favor of GAC, and these services should thus be considered medically necessary. Some have even recognized that past decisions denying coverage for gender-affirming care lacked the medical knowledge now available.¹¹⁴ These cases demonstrate that an understanding of medical necessity that incorporates medical consensus is vital to protecting gender-affirming care.

However, not all courts have this understanding. Because of the weight of a state’s discretion in defining medical necessity, a state’s characterization of GAC services as “experimental” could sink the justification for Medicaid coverage of GAC, especially in front of judges who do not recognize the stakes of treating gender dysphoria. At least eleven states have instituted policies excluding trans healthcare for all ages from their Medicaid policies,¹¹⁵ indicating that deference to state discretion is becoming increasingly risky. So, while the “medical necessity” argument has been successful in securing GAC in many cases, it is not a surefire solution to protecting Medicaid coverage of these services.

This is especially true under the new Trump administration and its influence on Congress. Precedent set by the Supreme Court in Harris v. McRae weakens the medical necessity argument.¹¹⁶ There, the Court considered whether state Medicaid programs were required to cover the cost of medically necessary abortions when the state would not receive federal reimbursements due to the Hyde Amendment, which prohibited the use of federal funds to pay for abortion services.¹¹⁷ The Court ruled that states had no such obligation, despite the plaintiffs’ argument that that the state’s refusal to pay for medically necessary abortions violated the Medicaid statute as well as their Due Process rights under Roe v. Wade.¹¹⁸ Rejecting these arguments, the Court held that “absent an indication of contrary legislative intent by a subsequent Congress, Title XIX does not obligate a participating state to pay for those medical services for which federal reimbursement is unavailable,” so the exclusion of coverage for even medically necessary abortions did not violate Medicaid regulations.¹¹⁹

Members of Congress are exploring the possibility of creating an equivalent of the Hyde Amendment for trans healthcare. The House Appropriations Committee’s proposed Fiscal Year 2026 bill for the Labor, Health and Human Services, Education, and Related Agencies Subcommittee included language blocking the use of funds for “for any social, psychological, behavioral, or medical intervention performed for the purposes of intentionally changing the body of an individual (including by disrupting the body’s development, inhibiting its natural functions, or modifying its appearance) to no longer correspond to the individual’s biological sex.”¹²⁰ The scope of this provision is wide-ranging, and “[r]ead broadly, the provision could shutter entire hospital programs that serve transgender patients and, at minimum, severely disrupt care for adults who rely on Medicaid, Medicare, and other federally funded services.”¹²¹ Should a provision like this pass, states will be free to argue that they are not obligated to cover GAC services under Harris.

President Trump has wielded his influence on this matter, using anti-trans provisions as a key point in his messaging on government funding debates in Congress.¹²² Another issue is posed by President Trump’s Executive Order restricting GAC for transgender youth.¹²³ The Executive Order is also analogous to the Hyde Amendment in that it seeks to halt federal funding for GAC.¹²⁴ Whether this element of President Trump’s Executive Order will stand in the coming years is another unanswered question, especially because the President does not have Congress’s Commerce Clause authority. Nonetheless, in an era where the Supreme Court is expanding the Executive’s power beyond its traditionally understood limits,¹²⁵ the Order could very well survive and foreclose the medical necessity argument for trans healthcare in Medicaid litigation.

The Affordable Care Act

Another major federal legislative scheme that has been used to strike down bans on GAC is the Affordable Care Act (“ACA”).¹²⁶ It has been argued that GAC bans violate Section 1557, the anti-discrimination provision of the Affordable Care Act. This provision states that:

Except as otherwise provided for in this title (or an amendment made by this title), an individual shall not, on the ground prohibited under title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.), the Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.), or section 794 of Title 29 [(The Rehabilitation Act)], be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program or activity that is administered by an Executive Agency or any entity established under this title (or amendments). The enforcement mechanisms provided for and available under such title VI, title IX, section 794, or such Age Discrimination Act shall apply for purposes of violations of this subsection.¹²⁷

Section 1557 thus incorporates the protections of other anti-discrimination laws, including Title IX and its prohibition on sex discrimination.¹²⁸ Prior to President Trump’s second term, there had already been significant back and forth over the definition of sex discrimination under this provision. Under the Biden administration, the Department of Health and Human Services (“HHS”) in 2024 issued a rule “codifying that Section 1557’s prohibition against discrimination based on sex includes LGTBQI+ patients.”¹²⁹ This HHS action sought to reinstate and expound upon an Obama-era HHS rule that included gender identity under the umbrella of sex discrimination,¹³⁰ but was removed in 2020 by the HHS under the Trump administration.¹³¹ Three federal courts postponed the effective date of the provisions or prohibited the full implementation of the 2024 rule.¹³²

It follows that federal agencies cannot be relied upon as a stable protector of healthcare rights. Although agencies are a function of the power-sharing system between Congress and the President, as part of the executive branch, they are subject to the priorities and agendas of any given president. The trend towards the weakening of federal agencies¹³³ is further indication that, when important rights are at stake, waiting for an agency to create and implement protections—which could be easily upended when a new president comes into office—is a precarious strategy.

Irrespective of HHS guidelines, the ACA has been successfully used to secure trans rights in litigation, namely as a result of the 2020 Supreme Court decision in Bostock v. Clayton County.¹³⁴

B. The Shifting Borders of Sex Discrimination Law: Bostock and the ACA

Bostock v. Clayton County has sparked national debate over the relationship between LGBTQ+ rights and protections against sex discrimination.¹³⁵ Bostock was a sex discrimination case under Title VII of the Civil Rights Act of 1964, which bans discrimination in employment.¹³⁶ In this case, gay and trans employees brought suit when they were fired after their respective employers learned of the employees’ sexual orientation or transgender status.¹³⁷ The Court held that firing an employee for being gay

or transgender constitutes sex discrimination and thereby violates Title VII.¹³⁸

The Bostock majority opinion focuses on a purely textualist, “formal, sterile, individualistic concept of ‘but-for’ causation,”¹³⁹ never touching explicitly upon gender identity per se. The opinion—written, unexpectedly, by Justice Gorsuch—notes that there is a dispute between the parties as to whether the term “sex” “reach[es] at least some norms concerning gender identity and sexual orientation. But . . . we proceed on the assumption that ‘sex’ . . . refer[s] only to biological distinctions between male and female.”¹⁴⁰ The majority thus operates on a binary definition of sex, choosing not to directly address the term “gender identity.”

It is vital to note that Bostock did not materialize from thin air—there is a body of caselaw considering disparate treatment for gender-nonconformity as a form of sex-stereotyping, and, therefore, as sex discrimination. In the 1989 case Price Waterhouse v. Hopkins, the Supreme Court found that sex-stereotyping is a form of sex discrimination,¹⁴¹ establishing “[s]ex equality’s crown jewel,”¹⁴² the anti-stereotyping principle, which asserts the “idea that sex classifications are illegal when they force people to conform to sex roles, like the homemaker wife or the breadwinning husband.”¹⁴³ The Court noted, for example, that “[i]n the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.”¹⁴⁴ Here, as Justice Brennan observed, basing a decision—in this case, a hiring decision—on perceived flaws in the performance of gender is sex discrimination. As a district court later explained, “Price Waterhouse shows that gender-stereotyping discrimination is sex discrimination per se.”¹⁴⁵

The implications for transgender people are apparent in a number of Title VII cases that arose from Price Waterhouse.¹⁴⁶ In 2016, a federal district court judge evaluated some of these cases (including decisions from the Ninth, Sixth, and Eleventh Circuits),¹⁴⁷ ultimately concluding that,

In some usages, the word “sex” can . . . mean the distinction between male and female, or the property or characteristic (or group of properties or characteristics) by which individuals may be so distinguished. Discrimination “because of sex,” therefore, is not only discrimination because of maleness and discrimination because of femaleness, but also discrimination because of the distinction between male and female or discrimination because of the properties or characteristics by which individuals may be classified as male or female.¹⁴⁸

“Sex stereotyping arguments rooted in Price Waterhouse and its progeny have thus far played the most significant doctrinal role in convincing courts to recognize transgender discrimination as sex discrimination.”¹⁴⁹ Bostock follows this line of cases,¹⁵⁰ bringing an undercurrent in sex discrimination law up to the surface: discrimination on the basis of gender non-conformity is a facet of sex discrimination. Regardless of its normative implications, the ruling was clear: “discrimination based on . . . transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.”¹⁵¹

The next consideration, then, is whether Bostock’s understanding of sex discrimination applies to the ACA. For now, this is an open question. In Skrmetti, the Court declined to extend the Bostock analysis to the interpretation of a Tennessee statute banning gender-affirming care for trans minors and deferred the question of the scope of Bostock’s reasoning to a later date.¹⁵² Nevertheless, many courts have extended Bostock’s logic, and there are obvious reasons for doing so, as discussed below. The majority in Bostock itself clarifies that questions beyond hiring decisions “are questions for future cases, not these,” which has does nothing to bar courts from applying the analysis thus far.¹⁵³

However, the application of Bostock outside of the Title VII context has been a major point of contention between the lower courts, and the analysis of these approaches is imperative to understanding the current state of federal trans healthcare protections. As stated by the Western District of Washington,

[A] plaintiff states a viable claim for sex discrimination under Title IX, and by extension the ACA’s anti-sex discrimination provision, by plausibly alleging: (1) the defendant is a healthcare program that receives federal financial assistance, contracts or credits; (2) the plaintiff was excluded from participation in, denied the benefits of, or subjected to discrimination in the provision of healthcare services; and (3) the latter occurred on the basis of sex.¹⁵⁴

Because the ACA incorporates Title IX protections, the link between Title VII jurisprudence and the ACA is neither tenuous nor novel. “The entire legal theory of sexual harassment,” one of the most significant strands of sex discrimination law,¹⁵⁵ “has been developed in the context of Title VII,” originating in the issue of quid pro quo sexual harassment in hiring and firing decisions.¹⁵⁶ Federal courts have long used the abundance of sex discrimination case law under Title VII in assessing Title IX claims,¹⁵⁷ including federal appellate courts. For example, the Tenth Circuit reasoned in 1987 that, “[b]ecause Title VII prohibits the identical conduct prohibited

by Title IX, i.e., sex discrimination, we regard it as the most appropriate analogue when defining Title IX’s substantive standards.”¹⁵⁸

Continuing this trend, several courts have extended Bostock’s Title VII analysis of sex discrimination to various contexts, such as Title IX, Equal Protection, and Due Process claims,¹⁵⁹ including appellate courts. The Tenth Circuit has used “Bostock’s commonsense explanation for how to detect a sex-based classification” in evaluating Equal Protection and Due Process claims against an Oklahoma law that prevented transgender individuals for changing the sex listed on their birth certificates.¹⁶⁰ The court found no issue with Bostock’s narrow holding, reasoning that the Bostock “Court’s focus on Title VII and the issue before it suggests a proper exercise of judicial restraint, not a silent directive that its reasoning about the link between homosexual or transgender status and sex was restricted to Title VII.”¹⁶¹ Four circuit courts have mirrored the Tenth Circuit’s reasoning in various Title IX cases: the Fourth Circuit stated in 2020 that “[a]lthough Bostock interprets Title VII of the Civil Rights Act of 1964, . . . it guides our evaluation of claims under Title IX.”¹⁶² Since 2020, the Seventh, Eighth, and Ninth circuits have also approved the use of Bostock’s sex discrimination analysis in evaluating Title IX claims.¹⁶³

Can this analysis be applied to the Affordable Care Act? So far, the only federal appellate court that has done so is the Fourth Circuit; in Kadel v. Folwell, a case from April 2024, the Fourth Circuit held that state health programs must provide coverage for gender-affirming surgeries.¹⁶⁴ The

court directly stated that Bostock provides the appropriate standard, observing that “there is nothing in Bostock to suggest the holding was that narrow” so as to only apply to employment.¹⁶⁵

The Kadel court employed an analogy Justice Gorsuch used in Bostock, a thought experiment in which an interviewer requires the applicant to tick a box on the application indicating whether they are gay or transgender, redacting any indication of the applicant’s sex. In this scenario, even when the employer does not know what the applicant’s sex is, there is still sex discrimination because

There is no way for an applicant to decide whether to check the homosexual or transgender box without considering sex . . . . Likewise, . . . [b]y discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today. Any way you slice it, the employer intentionally refuses to hire applicants in part because of the affected individuals’ sex, even if it never learns any applicant’s sex.¹⁶⁶

The Fourth Circuit reshaped this analogy and applied it to the healthcare context. At issue in Kadel is North Carolina’s health program, which covers surgical procedures for cisgender people, but does not cover those same procedures for transgender people.¹⁶⁷ The court gave various examples, including that of a patient seeking vaginoplasty, a situation in which the patient’s sex is not readily apparent because the procedure is used by both transgender and cisgender people.¹⁶⁸ Under the state’s policy, the coverage decision cannot be made “without knowing whether the vaginoplasty is to treat gender dysphoria—in other words, whether the patient was assigned male at birth.”¹⁶⁹ The decision, like the interviewer’s decision in Justice Gorsuch’s thought experiment, hinges on the person’s sex. Ultimately, the state law at issue

is textbook sex discrimination, for two reasons. For one, we can determine whether some patients will be eliminated from candidacy for these surgeries solely from knowing their sex assigned at birth. And two, conditioning access to these surgeries based on a patient’s sex assigned at birth stems from gender stereotypes about how men or women should present.¹⁷⁰

While Kadel can serve as a model for courts to use Bostock’s understanding of sex discrimination in ACA cases, the Supreme Court has thrown a wrench in the works by vacating and remanding the case back to the Fourth Circuit in light of its ruling in Skrmetti.¹⁷¹ The Fourth Circuit could very well come to the same conclusion as its original ruling, but uncertainty remains. Nevertheless, Kadel is, in many ways, the culmination of decades of evolving interpretations of sex discrimination law, trending towards the recognition—whether intentional or not—of the role of gender identity in sex discrimination. When we interpret the ACA’s prohibition on sex discrimination to include discrimination on the basis of gender identity and transgender status, many of the legal arguments for gender-affirming care bans collapse. However, the key issue here is just that—interpretation. It comes down to individual judges and justices to interpret sex discrimination law in this manner, and this has led to a significant variation of outcomes in gender-affirming care litigation.

Not every court has applied Bostock in trans rights cases. The Eleventh Circuit, for example, argued that Bostock should not apply in a Title IX case regarding the exclusion of transgender students from school bathrooms that aligned with their gender identity.¹⁷² The court did not interpret Bostock’s ruling as equating sex with gender identity, as “the Supreme Court in Bostock actually ‘proceed[ed] on the assumption’ that the term ‘sex,’ as used in Title VII, ‘refer[ed] only to biological distinctions between male and female.’ ”¹⁷³ The majority even characterizes “reading ‘sex’ to include ‘gender identity’ ” as detrimental to Title IX litigation, claiming that it “would result in situations where an entity would be prohibited from installing or enforcing the otherwise permissible sex-based carve-outs when the carve-outs come into conflict with a transgender person’s gender identity.”¹⁷⁴

The argument that Bostock’s conception of sex does not extend to gender identity is unconvincing. The crux of the argument for linking transgender status to sex discrimination is the choice to fire someone “for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”¹⁷⁵ For example, if “an employer who fires a woman, Hannah, because she is insufficiently feminine and also fires a man, Bob, for being insufficiently masculine . . . in both cases the employer fires an individual in part because of sex.”¹⁷⁶ Discrimination on the basis of gender non-conformity is thus an inherent aspect of sex discrimination, reflecting the long-established anti-stereotyping principle in sex discrimination doctrine.

Interestingly, the dissenters in Bostock seemed to base their arguments on the belief that the majority is equating transgender status with gender identity. Justice Alito, for example, mentioned the term “gender identity” forty-eight times in his dissent, repeatedly characterizing the majority’s opinion as extending Title VII to gender identity.¹⁷⁷ Such catastrophizing indicates the fear—and understanding—that the Court has recognized gender identity as a facet of sex.

Nonetheless, the Eleventh Circuit has repeatedly insisted that Bostock applies only to Title VII and the employment context. In a 2023 case brought against Alabama for its ban on gender-affirming care for minors, the Eleventh Circuit declined to extend the Bostock analysis to the plaintiffs’ Equal Protection claims.¹⁷⁸ In doing so, the court referenced the Sixth Circuit’s decision earlier that year in L.W. ex rel. Williams v. Skrmetti, which upheld Tennessee’s ban on gender-affirming care for minors.¹⁷⁹ The Sixth Circuit explicitly stated that Bostock’s “reasoning applies only to Title VII.”¹⁸⁰ The Sixth Circuit had already established this position in 2021¹⁸¹ and reiterated it in 2024.¹⁸² It seemed the Eleventh Circuit almost had a change of heart in 2024 when it used Bostock to rule against the exclusion of gender-affirming care from insurance coverage, but this case was granted rehearing en banc, and the original decision was subsequently vacated.¹⁸³

Aligning with the Sixth and Eleventh Circuits, several district courts have declined to extend Bostock beyond the Title VII context.¹⁸⁴ This was also a major component of the reasoning behind delaying the 2024 HHS rule that would have included gender identity under sex discrimination.¹⁸⁵ For example, a Florida district court granted an injunction against the HHS Rule, stating that the “Eleventh Circuit has spoken on this point, clearly: Title IX does not address discrimination on the basis of gender identity.”¹⁸⁶ Whether the Supreme Court will validate these arguments is uncertain. Given the Supreme Court’s ambivalence on Bostock and its affirming of the Sixth Circuit’s ruling in Skrmetti,¹⁸⁷ it could very well refuse to extend its reasoning to the ACA. However, this refusal would be inconsistent with the crux of Bostock’s reasoning: a textualist approach to Title VII.

Common criticisms of expanding the scope of Bostock fall away when considering the ACA context. As discussed above, the link between Title VII and Title IX analysis is well-established, and the ACA explicitly incorporates Title IX’s prohibition on sex discrimination. Justice Thomas’s contention in his Skrmetti concurrence that Bostock cannot be applied to constitutional questions¹⁸⁸ is irrelevant: interpreting the ACA is a matter of statutory analysis, not Fifth or Fourteenth Amendment equal protection doctrine. Justice Gorsuch’s purely textualist approach can just as easily be applied to Title IX as it can to Title VII. The question of whether sex encompasses gender identity are equivalent is also irrelevant: under a but-for causation standard, sex assigned at birth is enough to satisfy the analysis.

Nevertheless, in light of the current legal landscape, arguments under the ACA could be weakened or potentially shut down altogether. While both the ACA and Medicaid have historically been used to secure trans healthcare protections—and could very well be used to do so in the future—these paths are increasingly narrowing.

C. Is Sex Equality Enough? Trans Rights Under Equal Protection

Much of the existing scholarship on trans rights focuses on establishing that LGBTQ+ discrimination is sex discrimination, and rightfully so. Sex discrimination jurisprudence is an already existing framework doctrinally consistent with LGBTQ+ equality, with precedent favorable to trans rights cases, as seen in the above discussion on Bostock. However, as the previous Section demonstrates, there is significant room for judges to inject their own biases in deciding to apply Bostock. For advocates bringing constitutional claims, there is even further risk of anti-trans animus to poison the legal reasoning. This Section discusses how sex discrimination doctrine under an Equal Protection framework can be misapplied or outright ignored in trans rights cases, underscoring the limits of sex equality doctrine in protecting trans rights.

When Is Sex Discrimination Doctrine (Mis)applied?

In assessing how courts deploy sex discrimination analysis, it is worth discussing the definitional debates over the term “sex.” One of President Trump’s recent Executive Orders, for example, states that sex is defined by “an individual’s immutable biological classification as either male or female,” and states that the government will only “recognize two sexes, male and female. These sexes are not changeable and are grounded in fundamental and incontrovertible reality.”¹⁸⁹

Biologists, medical professionals, and historians, however, dispute this aforementioned “fundamental and incontrovertible reality.” The Executive Order fails to take into account the existence of intersex people, who have “innate bodily traits that . . . cause a person’s chromosomes, gonads or other internal reproductive organs, genitals, and/or hormone function to differ from characteristics that are ‘typically’ male or female.”¹⁹⁰ The manifestations of intersex conditions vary widely¹⁹¹ and are not always obvious or consistently apparent. For example, “[s]ome intersex traits—such as atypical external genitalia—are apparent at birth. Others—such as gonads or chromosomes that do not match the expectations of the assigned sex—manifest later in life, such as around puberty.”¹⁹² Intersex people constitute around 1.7% of the population, although some estimates place the number closer to 4%—because components of sex such as chromosomes, genes, and hormones cannot be evaluated unless testing occurs, many do not realize they are intersex unless they seek such testing as a part of other medical treatment, so the number of intersex people may be significantly undercounted.¹⁹³ While some see intersex people as “statistical outliers” that have no bearing on how we conceptualize sex categories,¹⁹⁴ this framing is inaccurate—rather than being fringe cases, intersex people exemplify the spectrum upon which sex is constructed for everyone. Nor is intersex simply a “third” box to neatly funnel “outliers” into. The vast variation in intersex conditions and the physical manifestations of these conditions indicate that “intersex is not a discrete biological category.”¹⁹⁵

Intersex people are often cited as an indication that sex is socially constructed because the definition of intersex itself is socially constructed. The medical field views intersex as “variations in congenital sex anatomy that are considered atypical for females or males. The definition of intersex is thus context specific. What counts as an intersex phallus, for example, depends on local standards for penises and clitorises.”¹⁹⁶ The treatment of intersex people demonstrates that sex categories are informed by beliefs and norms. However, asserting “that sex is ‘socially constructed’ does not mean that biological sex differences do not exist or do not matter. It simply conveys that our definition of sex, and the way that we categorize people into sexes, is determined by society and our assumptions about how the world works.”¹⁹⁷

It is, of course, unlikely that most politicians and judges are interested in sitting down and carefully pondering the social construction of sex. The purpose of this discussion is to demonstrate that, regardless of normative claims, both objective science and historical reality show that efforts to pin down a definition of “biological sex” are inherently messy, misguided, and inaccurate. Moreover, these messy, misguided, and inaccurate efforts have material consequences in how they are applied and interpreted in the law.

The next question, then, is how sex is or should be defined in the law. Should we define sex based on paperwork? Many states do: twenty-two states and Washington, D.C. allow “residents to mark M, F, or X on their driver’s license,” and sixteen states and Washington, D.C. allow “residents to mark M, F, or X on their birth certificates.”¹⁹⁸ These states promote the idea that gender identity is “the primary indicator of legal sex.”¹⁹⁹ However, not all states agree—some focus on binary, biological indicators of sex. Definitions based in biological sex that identify specific physical traits are deeply misguided, as biologists do not think there is “ ‘one biological parameter that takes over every other parameter.’ ”²⁰⁰ Nevertheless, many state “laws regulate gender and define sex as only male or female, typically based on a person’s presumed reproductive anatomy, chromosomes, hormones, or other physical characteristics at birth.”²⁰¹ At least twelve states regulate sex under these laws, creating “dangerous implications for transgender people when it comes to bathrooms, identity documents, and other areas of law or policy.”²⁰² Laura Lane-Steele identifies the contours of such “ ‘sex defining laws,’ ” which

are a product of state legislatures and school boards, among other legal actors, codifying what they understand to be the true meaning of sex. For the most part, these laws define sex based on some combination of sex assigned at birth (SAAB), genitalia, chromosomes, and reproductive anatomy. Under these laws, people assigned male at birth (AMAB), who have penises, testes, and XY chromosomes are male, while people assigned female at birth (AFAB), who have vaginas, ovaries, uteruses, and XX chromosomes are female. These definitions are deployed to determine if someone is male (M) or female (F) for bathroom access, participation on single-sex sports teams, and eligibility for sex marker changes, among other things.²⁰³

Such laws are not necessarily a barrier to favorable rulings. In bathroom bill cases involving these laws, for example, courts have ruled that trans-exclusionary bathroom policies discriminate on the basis of sex.²⁰⁴ Yet, Lane-Steele points out that although these courts came to the right conclusions, they failed to explain why the state’s definition of sex does not comport with the state’s purported justification for the exclusion.²⁰⁵ As a result, “they are of limited use in future sex-defining equal protection cases.”²⁰⁶

To remedy this, Lane-Steele argues that courts should apply “a contextual approach to sex applied to an equal protection challenge to a sex-defining law” in which “a court would identify the precise model of sex the state is using . . . . Once the court has identified how exactly the state is defining sex, it can then square up the question presented, using the state’s exact definition of sex as the relevant means” to determine whether the state law substantially relates to the state’s interest and should survive intermediate scrutiny.²⁰⁷ However, Lane-Steele also acknowledges that, because the decision to apply a contextual approach requires “rejection of naturalized and pre-legal definitions of sex . . . some conservative judges will not adopt it.”²⁰⁸ As she puts it, “[a] contextual sex analysis is off the table for those committed to certain pre-existing and inflexible views about sex and who cannot suspend their gender ideologies when doing their jobs. Indeed, most, if not all pro-trans arguments are probably off the table for these judges.”²⁰⁹ Judges, then, cannot be fully relied upon to accurately identify and evaluate how states are deploying definitions of sex in sex discrimination claims brought by trans people. Absent such evaluation, equal protection arguments could easily be struck down.

Another issue is that sex discrimination cases depend on which thread of sex equality doctrine the judge chooses to follow. Jessica Clarke identifies an “ascendant”²¹⁰ trend of “sex discrimination formalism” in which judges tend to apply one of

three distinct types of formal rules when it comes to intentional sex discrimination: (1) but-for causation, which asks whether mistreatment would have befallen an individual if their sex were different; (2) anticlassification rules, also referred to as “blindness,” which ask whether a decision-maker acted pursuant to an explicit or implicit policy that considers sex; and (3) “similarly situated” rules, which forbid decision-makers from treating individuals of different sexes who are alike in all relevant respects differently.²¹¹

While Clarke maps this typology in great detail, this Subsection will briefly discuss one of these rules as an example of the judicial malleability of certain aspects of sex discrimination doctrine—the “similarly situated” inquiry, which “has been particularly prominent in transgender rights litigation.”²¹²

In this inquiry, it is necessary to identify which groups are being compared and evaluate whether they are truly similarly situated. Yet, what is the point of comparison? Take, for example, trans inclusion in sports. Satisfying the similarly situated inquiry “requires recognizing gender identity as the relevant point of comparison—that is, that a transgender girl excluded from girls’ sports is being treated worse than other similarly situated girls whose gender identity (when aligned with their ‘biological sex’) is being respected.”²¹³ In other words, the court must understand gender identity as the indicator of sex, rather than “biological sex.” If the court chooses to define sex as “biological sex,” this argument could fail, as the court might find that a transgender girl who is excluded from girls’ sports is being treated the same as other students assigned to teams based on their “ ‘biological sex’ (e.g., male students).”²¹⁴ The definitional debate over sex is thus always running in the background.

Additional complications arise for nonbinary people. While many material concerns of trans people and nonbinary people overlap (such as access to gender-affirming care), other concerns are thought to be in contradiction. For example, “plaintiffs in transgender bathroom cases (ostensibly) are fine with sex separatism in restrooms; their disagreement is with the sex category into which they have been assigned. The same holds true for plaintiffs in transgender-sports litigation: theirs is an issue of sex assignment, not sex separatism.”²¹⁵ Annie Schuver reminds us that for nonbinary people, the re-entrenchment of sex separatism is not the goal; rather, many nonbinary people seek sex-neutral spaces, such as all-gender bathrooms.²¹⁶

How do sex discrimination claims for nonbinary people play out? In analyzing the application of but-for rules to nonbinary cases, Schuver poses the hypothetical of “two students, both assigned female at birth. They are identical in all significant respects, except one identifies as nonbinary and the other does not. The aforementioned bathroom policy requires both students to use the girls’ bathroom because it aligns with their sex assigned at birth.”²¹⁷

What happens if a judge uses the “similarly situated” route? Similar to the but-for inquiry, if the point of comparison is assigned sex at birth, the argument fails—both students are of the “same” sex, and they were treated equally.²¹⁸ The difficulty here is coming up with an alternate point of comparison. A transgender boy could argue that he was “treated worse than other boys because he was not permitted to use restrooms consistent with his gender identity.”²¹⁹ This argument does not work for nonbinary students. If gender identity is an indicator of sex, then no nonbinary student is being treated worse than any other nonbinary student—none of them have access to all-gender bathrooms, so they are all being treated the same. The judge in this case might hesitate to deviate from this formalistic reasoning because “[a]part from ideology, courts are unlikely to explicitly adopt principles directed at systemic injustice, stereotypes, or balancing of interests as controlling inquiries due to concerns about institutional competence.”²²⁰ So, if a judge chooses to use the similarly situated inquiry in a case of this nature, the nonbinary plaintiff will likely fail.

The success of trans and nonbinary plaintiffs can hinge on the judge’s choices in selecting from a menu of definitions of sex and formal rules of evaluating sex discrimination. There is thus a significant amount of room for personal anti-trans biases to slip into the analysis. Ultimately, “[j]udges with ideological reasons for upholding laws that target transgender people will find grounds for doing so, even if they acknowledge that those laws classify on the basis of sex and therefore trigger heightened scrutiny.”²²¹

When Is Sex Discrimination Doctrine Not Applied At All?

The most consequential recent development in trans rights cases has been the Supreme Court’s 2025 decision in U.S. v. Skrmetti.²²² At issue in this case was a Tennessee law—referred to as SB1—that banned gender-affirming care for transgender minors. The operative word here is “transgender”—the same procedures are permissible

to treat a minor’s congenital defect, precocious (or early) puberty, disease, or physical injury. . . . The law defines the term “[c]ongenital defect” to include an “abnormality present in a minor that is inconsistent with the normal development of a human being of the minor’s sex,” . . . but excludes from the definitions of “[c]ongenital defect” and “disease” “gender dysphoria, gender identity disorder, [and] gender incongruence.”²²³

In other words, cisgender children can receive these treatments, but healthcare providers are prohibited from administering the same treatments to transgender children. Three transgender minors, their parents, and a medical provider were joined by the United States government under President Joe Biden’s administration in bringing suit against the law, alleging that it violated equal protection.²²⁴

Unlike the above discussion on the misapplication of sex discrimination doctrine, the majority—written by Chief Justice Roberts—sidestepped the application altogether, holding that SB1 classifies on the basis of age and on the basis of medical use, neither of which “turn[] on sex. Rather, SB1 prohibits healthcare providers from administering puberty blockers and hormones to minors for certain medical uses, regardless of a minor’s sex.”²²⁵ To establish SB1’s classification on the basis of medical use, Roberts used the example of a transgender boy who takes puberty blockers to treat his gender dysphoria and a cisgender boy who uses the same treatment for precocious puberty.²²⁶ According to Roberts, SB1 simply “restricts which of these medical treatments are available to minors,”²²⁷ and “[t]he application of that prohibition does not turn on sex.”²²⁸

Nor does SB1, according to the Court, “mask sex-based classifications” because

the law does not prohibit conduct for one sex that it permits for the other. Under SB1, no minor may be administered puberty blockers or hormones to treat gender dysphoria, gender identity disorder, or gender incongruence; minors of any sex may be administered puberty blockers or hormones for other purposes.²²⁹

Chief Justice Roberts also rejected the Plaintiffs’ argument that SB1 constitutes impermissible sex-stereotyping through somewhat circular logic, asserting that there is no sex-stereotyping because the law does not classify on the basis of sex.²³⁰

The opinion also dodged the question of whether transgender individuals constitute a suspect or quasi suspect class, asserting that the question is immaterial in this case because “SB1 does not classify on the basis of transgender status.”²³¹ In reaching this conclusion, the majority resurrects a case that had “long been largely moribund as a precedent”²³² in Supreme Court equal protection doctrine since it was handed down in 1974—Geduldig v. Aiello.²³³ In Geduldig, the Court upheld a California insurance program that excluded pregnancy-related disabilities from coverage, ruling that the policy did not discriminate on the basis of sex.²³⁴ The Court “explained that the program did not exclude any individual from benefit eligibility because of the individual’s sex but rather ‘remove[d] one physical condition—pregnancy—from the list of compensable disabilities.’ ”²³⁵ Furthermore, there was no sex discrimination because the program “divided potential recipients into two groups: ‘pregnant women and nonpregnant persons,’ ” and “[b]ecause women fell into both groups, the program did not discriminate against women as a class.”²³⁶ This case established that “a State does not trigger heightened constitutional scrutiny by regulating a medical procedure that only one sex can undergo unless the regulation is a mere pretext for invidious sex discrimination.”²³⁷

Chief Justice Roberts analogized SB1 to the insurance program at issue in Geduldig. SB1

removes one set of diagnoses—gender dysphoria, gender identity disorder, and gender incongruence—from the range of treatable conditions. SB1 divides minors into two groups: those who might seek puberty blockers or hormones to treat the excluded diagnoses, and those who might seek puberty blockers or hormones to treat other conditions . . . . Because only transgender individuals seek puberty blockers and hormones for the excluded diagnoses, the first group includes only transgender individuals; the second group, in contrast, encompasses both transgender and nontransgender individuals.²³⁸

This logic, coupled with the lack of showing that “SB1’s prohibitions are mere pretexts designed to effect an invidious discrimination against transgender individuals,” led the Court to reject a finding of discrimination on the basis of transgender status.²³⁹

Because the Court found no sex-based classification and no suspect or quasi-suspect class status for trans people, it did not apply heightened scrutiny.²⁴⁰ Instead, under a rational basis review standard, the Court upheld SB1. Echoing Tennessee’s misleading claims about the supposed experimental nature of gender-affirming care and its threat to the mental and physical wellbeing of minors, the Court found SB1 to be rationally related to the state’s purported “interests in ‘encouraging minors to appreciate their sex’ and in prohibiting medical care ‘that might encourage minors to become disdainful of their sex.’ ”²⁴¹

Justice Sotomayor laid out a powerful critique of the majority’s unconvincing reasoning in her dissent, pointing out that which is obvious—SB1 facially classifies on the basis of sex and on the basis of transgender status. The majority’s assertion that the law does not classify on the basis of transgender status (an assertion so dubious that even Justice Alito rejected it in his concurrence)²⁴² does not hold water. Justice Sotomayor observed that the law “prohibits Tennessee physicians from offering hormones and puberty blockers to allow a minor to ‘identify with’ a gender identity inconsistent with her sex.”²⁴³ However, “[d]esiring to ‘identify with’ a gender identity inconsistent with sex is, of course, exactly what it means to be transgender. The two are wholly coextensive.”²⁴⁴

Even more salient for the purposes of this Note is Justice Sotomayor’s argument that SB1 does classify on the basis of sex. The law establishes that “sex determines access to the covered medication.”²⁴⁵ To illustrate, Justice Sotomayor used the example of a “mother who contacts a Tennessee doctor, concerned that her adolescent child has begun growing unwanted facial hair. This hair growth, the mother reports, has spurred significant distress because it makes her child look unduly masculine.”²⁴⁶ The physician’s course of action “depends on the adolescent’s sex. If the patient was identified as female at birth, SB1 allows the physician to alleviate her distress. . . . What if the adolescent was identified male at birth, however? SB1 precludes the patient from receiving the same medicine.”²⁴⁷

Justice Sotomayor identified a key point that is completely glossed over by the majority—the treatments at issue are used by both transgender and cisgender children for gender-affirming purposes. Medical providers

may prescribe these same medicines to adolescents whose physical appearance does not align with what one might expect from their sex identified at birth. An adolescent female, for example, might receive testosterone suppressors and hormonal birth control to reduce the growth of unwanted hair on her face or body (sometimes called male-pattern hair growth or hirsutism). . . . [and] [a]n adolescent male may also receive hormones to address a benign but atypical increase in breast gland tissue (known as gynecomastia), sometimes resulting from below-average testosterone levels. Like any medical treatment, hormones and puberty blockers come with the potential for side effects. . . . Yet patients and their parents may decide to proceed with treatment on the advice of a physician, despite the accompanying medical risks.²⁴⁸

This passage highlights that cisgender children, like transgender children, may have an interest in potentially altering even physically “benign” characteristics to alleviate psychological distress about their gender presentation. Under SB1, cisgender children and their parents are allowed to make informed decisions about their treatment in conjunction with their doctors. Transgender children, seeking the same care with the same informed consent standards and for the same purpose, do not have the same right.

Such a policy is, contrary to the majority’s circular logic, rooted in sex-stereotyping. After all, “[m]ale (but not female) adolescents can receive medicines that help them look like boys, and female (but not male) adolescents can receive medicines that help them look like girls,”²⁴⁹ cementing expectations of gender presentation within the law.

This becomes especially clear when considering SB1’s built-in exception for intersex children. SB1, like virtually all state bans on gender-affirming care, provides a carve out for “gender-normalizing surgeries, which are performed on intersex infants to conform their bodies to socially constructed expectations about the male/female binary.”²⁵⁰ In SB1’s case, this is reflected in allowance for the use of these treatments to treat a “ ‘[c]ongenital defect,’ ” which is defined as “an ‘abnormality present in a minor that is inconsistent with the normal development of a human being of the minor’s sex.’ ”²⁵¹ Significant “research has demonstrated that intersex surgeries often produce a range of harms that can include sterilization (sometimes triggering the need for lifelong hormone therapy), loss of sexual sensation, physical scarring, ongoing pain, and a host of psychological ailments.”²⁵² Moreover, “[t]he irreversibility of these surgeries and the inability of infants to consent are abundantly clear.”²⁵³

How can these procedures be squared with GAC bans? The contradiction is glaring—“[t]he very concerns cited to justify the bans—medical harm, irreversibility, and lack of informed consent—are even more pronounced in the context of intersex surgeries.”²⁵⁴ However, “intersex exceptions are, in fact, consistent with sentiments behind bans on gender-affirming care: a deep-seated fear of and discomfort with children who do not conform to traditional sex stereotypes.”²⁵⁵ Tennessee’s concern that minors “appreciate their sex” seems to fall away when it considers intersex children, whose physical characteristics at birth can “challenge cultural understandings about the fixedness of biological sex characteristics.”²⁵⁶ By allowing for exceptions for intersex and cisgender children, the law reflects the state’s commitment to enforcing sex stereotypes. The majority’s sanctioning of such a law threatens and “implicates the core concern of the Supreme Court’s sex discrimination jurisprudence—that the state should not use its laws to force individuals to conform to a stereotyped view of how members of one sex should act.”²⁵⁷

Even if we put aside these contradictions and assume that Tennessee is operating out of a good faith concern for protecting the health and wellbeing of minors, the fundamental calculus does not change. Deference to the state in its policy decisions may be valid and necessary in some contexts, but Justice Sotomayor reminds us that the role of the legislature “does not change the Court’s obligation, as mandated by our precedents, to determine whether the challenged sex classification in SB1’s categorical ban is tailored to protecting minors’ health and welfare, or instead rests on unlawful stereotypes about how boys and girls should look and act.”²⁵⁸ The core question here is not a finding of fact regarding the medical efficacy of GAC procedures to the treat gender dysphoria—the question is whether the law is subject to heightened scrutiny, and thereby, whether the law is sufficiently tailored to the state’s purported interest. Had the majority applied sex discrimination analysis and heightened scrutiny, it could have formed a far more principled analysis of SB1.

The long-term implications of Skrmetti are yet to be seen. While “ ‘[t]he Court left undisturbed Supreme Court and lower court precedent that other examples of discrimination against transgender people are unlawful,’ ”²⁵⁹ Skrmetti “offers cover for the courts, including the Supreme Court, to simply deny reality and refuse to see sex or gender identify classifications. If there was no such classification in Skrmetti, then perhaps there are also no such classifications in laws banning transgender people from the military, excluding them from sports, or banning them from gender-identity-congruent restrooms.”²⁶⁰

The Supreme Court seems open to such outcomes, vacating and remanding major favorable trans rights cases back to the circuit courts: Kadel v. Folwell²⁶¹ and its companion case Anderson v. Crouch²⁶² in the Fourth Circuit, as well as Fowler v. Stitt²⁶³ in the Tenth Circuit. While Kadel and Anderson concerned GAC coverage, Fowler had nothing to do with trans healthcare; the state law at issue involved gender markers on identity documents.²⁶⁴ Despite Skrmetti’s apparent silence on issues outside trans healthcare for minors, it seems that the Court is willing to wield its influence on the lower courts on other trans rights issues. This influence is far reaching—even cases untouched by the Court are now being reconsidered. For example, the Seventh Circuit has decided sua sponte to vacate and reopen D.P. v. Mukwonago Area School District (a trans bathroom case in which the court ruled in favor of the transgender plaintiff) in light of Skrmetti.²⁶⁵

Skrmetti is a prime example of how, even when there is obvious sex discrimination at play in a trans healthcare case, the courts—including the highest court in the land—can simply ignore it. While the battle for trans rights is ongoing and unresolved, the case poses a significant danger to trans healthcare—and the future of the Court’s equal protection doctrine.

III. CONGRESSIONAL ACTION: MODERNIZING CIVIL RIGHTS LAW

This Part argues that Congress should pass new civil rights legislation specific to LGBTQ+ equality. This Part then proposes that, as a part of this legislation, Congress pass a new healthcare statute prohibiting “discrimination on the basis of transgender or nonbinary status.”

A. Reframing LGBTQ+ Equality

Through the courts, the category of “sex” in discrimination claims has broadened to include trans people. As the previous Part demonstrates, however, current sex equality jurisprudence has its limitations in that judges retain a certain amount of ideological leeway. This Section proposes reframing LGBTQ+ discrimination as its own category within civil rights law. If broadly applied, this additional categorization would carve out explicit protections for LGBTQ+ people in the same areas as other civil rights laws, such as in employment and education.

On a macro level, there are various reasons for this proposed change. Directly naming LGBTQ+ status as a basis for protection against discrimination codifies a cultural recognition of LGBTQ+ people—in other words, it makes us socially and legally legible. This legibility is especially vital in this current moment, where efforts to erase trans people from public life are on the rise. This change would also acknowledge that LGBTQ+ people face specific challenges that must be addressed and rectified at the national level.

Beyond signaling a new cultural understanding, this change would also significantly simplify the legal analysis. Many judges are ill-equipped to sort through the nuances of sexuality and gender. Instead of bumbling through normative questions into which they can inject their own biases, judges could

focus their decision on a clear question: was this person discriminated against on the basis of their LGBTQ+ status?

B. A Brief Note on Feminism

Some feminists and trans rights advocates may ask that, in a moment where anti-gender ideology and trans-exclusionary feminism is on the rise, does separating LGBTQ+ equality from sex equality concede that the concerns of trans people have no place in questions of women’s rights? For example, does such distinction cement the idea that trans women are not “real women” because their concerns are not the same as cis women?²⁶⁶ Does this not feed directly into the rhetoric of TERFs and the anti-gender ideology movement?²⁶⁷

Not at all—this proposal does not in any way suggest that LGBTQ+ rights should be severed from principles of sex equality. As Courtney Cahill notes, “sex equality and LGBTQ equality are overlapping and interdependent . . . Historically, the social and political movements for sex equality and LGBTQ equality were intertwined—at least for a time—based on their shared commitment to eradicating sex-role stereotypes”²⁶⁸ Just as many “American feminists are far from trans-exclusionary and have long been among the most supportive groups of LGBTQ equality,” many “transgender women and men have long and fully participated in all factions of feminist activism.”²⁶⁹ LGBTQ+ equality and sex equality are inextricably linked, and this Note does not advocate for severing this tie.²⁷⁰

The implementation of this Note’s proposal would not preclude queer and trans people from bringing sex discrimination claims. Regardless of the Supreme Court’s decision in Skrmetti, the Court has made clear that LGBTQ+ discrimination falls under sex discrimination in at least some contexts, indicating that these two forms of discrimination are not mutually exclusive, and decades of sex equality jurisprudence support this understanding.²⁷¹

Activists and advocates have no reason to abandon the implications of this hard-fought victory. The legislation proposed in this Note is based in large part on practicality—creating a new category of discrimination law specific to LGBTQ+ status provides an additional or alternate cause of action when judges misapply sex equality doctrine and avails LBGTQ+ people to a more concrete layer of protection. This Note, therefore, encourages advocates to fight for this legislation in addition to promoting arguments based on sex equality.

C. Legislating New Trans Healthcare Policy

As the central focus of this Note is trans healthcare, I specifically propose that, in conjunction with this reframing of LGBTQ+ equality law, Congress pass a new healthcare statute explicitly prohibiting “discrimination on the basis of transgender or nonbinary status” in the coverage and administration of healthcare services. Congress can use its power of the purse to enforce this law on all institutions receiving federal funding.²⁷²

This proposed legislation is narrow and straightforward. It is predicated on the idea that transgender and nonbinary people should have access to the same treatments available to cisgender people. As discussed in Part II, a core aspect of gender-affirming care bans is that they do not ban this care for cisgender people.²⁷³ The discrimination question—whether it be on the basis of sex or on the basis of transgender status—disappears if legislatures categorically ban GAC for everyone.²⁷⁴ However, legislatures will not do this, “likely because nontransgender people require health care for purposes indistinguishable from gender affirmation,”²⁷⁵ and routinely access this care already. In reality, “most gender-affirming care is in fact provided to cisgender patients—that is, persons whose sex assigned at birth matches their gender identity. Puberty blockers, hormone replacement therapy, and surgery are interventions provided for cisgender and TGD [(transgender and gender-diverse)] patients alike to affect their embodiment of gender.”²⁷⁶

There are also significant disparities in how such care is accessed. For example, among the millions of cisgender men taking off-label testosterone to affirm their masculinity, studies demonstrate that these men “tend to initiate conversations about the treatment, do their own research at home, and see their role in decision making as that of self-advocacy.”²⁷⁷ In contrast, when trans patients pursue hormone therapy, they are “criticized by prescribers for doing their own research, asking about interventions ‘out of turn,’ and advocating for access to gender-affirming care.”²⁷⁸ Both cisgender and transgender people “may engage in the same behaviors that facilitate cisgender access to the hormone but experience very different judgments from some clinicians.”²⁷⁹

These disparities are not just seen in attempts to seek hormone therapy, but also in attempts to receive gender-affirming surgery. Research has shown that while gender-affirming surgeries are incredibly rare for trans minors, “cisgender minors and adults had substantially higher utilization of analogous gender-affirming surgeries than their [transgender and gender-diverse] counterparts.”²⁸⁰ For example, “[d]espite affecting analogous anatomical structures and sharing evaluation criteria, the legitimacy of cisgender postmastectomy surgery has been protected in law, whereas the legality of chest surgery for TGD people is being undermined in many states.”²⁸¹ Prohibiting discrimination on the basis of transgender and nonbinary status would help reduce these disparities and increase fairness in the administration of healthcare.

Has Skrmetti foreclosed the efficacy of such a statute by holding that a ban on GAC for minors does not discriminate on the basis of transgender status? Not necessarily. Skmetti’s reliance on Geduldig²⁸² is actually instructive here. As Reva Siegel explains, the Supreme Court applied its Geduldig reasoning to General Electric Co. v. Gilbert,²⁸³ a pregnancy discrimination case brought under Title VII, “[b]ut Congress soon repudiated the Court’s efforts. Within two years, it enacted the Pregnancy Discrimination Act of 1978 (“PDA”), which defined discrimination on the basis of pregnancy as discrimination on the basis of sex under the nation’s employment discrimination law.”²⁸⁴

The PDA contains specific language rejecting the Supreme Court’s holdings, clarifying that “[t]he terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions.”²⁸⁵ An analogous provision could be implemented in the context of trans healthcare. The statute could prohibit “discrimination on the basis of transgender status” in the administration of healthcare, with the added provision that “the terms ‘because of transgender status’ or ‘on the basis of transgender status’ include, but are not limited to, because of or on the basis of diagnosis of gender dysphoria, gender incongruence, or related medical conditions.” Like the PDA’s rejection of Geduldig and Gilbert, this proposed provision would reject Skrmetti and overcome its negative implications for trans healthcare protections.

D. Notes on Partisanship and Political Responsibility

While I acknowledge that this Note’s proposed legislation cannot come to fruition in the near future, it is worth addressing the politics of protecting trans rights. Some think it is a simple question of partisanship—once Democrats are back in power, they will surely endeavor to protect trans rights. However, it would be a mistake to assume that a Democratic majority in Congress is the direct answer. Many non-cisgender people—the author included—feel that the Democratic Party has abdicated responsibility in protecting trans rights and is headed in a dangerous direction. Of course, Democrats have endeavored to protect trans rights, from President Biden’s administration’s attempts to effectuate trans healthcare protections via HHS guidelines²⁸⁶ and arguments against gender-affirming care bans in front of the Supreme Court,²⁸⁷ to attorneys general of Democrat-led states challenging President Trump’s anti-trans executive orders.²⁸⁸

However, it has been disheartening to see some Democrats and liberals shift away from trans rights as the anti-trans moral panic intensifies. Some Democrats, including high-profile Party figures like California Governor Gavin Newsom, have taken the bait, “ceding ground on trans rights—particularly when it comes to sports—following Trump’s re-election.”²⁸⁹ Some are now parroting Republican talking points about the “dangers” of trans people’s participation in sports and ignoring any sort of scientific nuance on the issue,²⁹⁰ despite the negligible number of trans girls and women in girls’ and women’s sports.²⁹¹ Giving in to these distractions diverts attention from the real, material harms currently affecting trans people and only serves to perpetuate fear of trans people.

Trans people are not only scapegoated for society’s ills by conservatives²⁹² but also scapegoated for the Democratic Party’s own failures. Some blame support for trans rights as a factor in former Vice President Harris’s loss in the 2024 presidential election, despite the fact that “Harris largely avoided the issue on the trail and in interviews and it was notably absent from [that] year’s Democratic National Convention.”²⁹³ There was virtually no response to Trump’s anti-trans advertising, and “reports have emerged indicating that some Democratic strategists [were] shaken by the anti-trans ad blitz and are getting cold feet around anti-trans advertising.”²⁹⁴ The last election’s postmortem need not be reopened, but these points are important to acknowledge because they indicate that, to many, trans people are now an “issue” to be debated and cast aside when politically expedient. This is especially obvious as the Party debates how to appeal to voters²⁹⁵ in the midst of a “new discomfort on the issue from a party that has long seen itself as a champion of L.G.B.T.Q. Americans.”²⁹⁶ This Note urges Democrats—and for that matter, Republicans—to remember that trans people are ordinary Americans and to not let partisanship interfere with protecting civil rights.

CONCLUSION

This Note has endeavored to outline the current state of trans rights in the United States and to suggest that advocates, lawyers, and policymakers pursue a new strategy to promote trans equality. Passing civil rights legislation specific to trans people will provide protections while limiting both executive overreach and the power of ideologically driven judges, creating a concrete basis upon which trans people can bring discrimination claims.

It will certainly be an uphill battle to reach a point where enactment is feasible. However, it is clear that neither the executive branch nor the judiciary can be relied upon to establish protections for trans people, especially in the realm of healthcare. Nor is it necessarily within their jurisdiction to do so. Congress is the branch that decides how federal funds are spent.²⁹⁷ Congress is the branch that establishes national standards in healthcare policy.²⁹⁸ Congress is the branch that enacts federal civil rights law and provides means of enforcing it.²⁹⁹ Establishing clear standards and protections in the area of trans rights and trans healthcare is thus the responsibility of Congress. Protecting and engaging with the democratic process will therefore be a vital component of the American LGBTQ+ equality movement.

Trans people will continue to exist. As will nonbinary people, intersex people, and gender non-conforming people. How many will be able to survive unscathed by the current legal and cultural assault on our existence is an open question. What is clear, however, is that absent a principled approach to equality, the clock will continue to turn back on civil rights.

99 S. Cal. L. Rev. 677

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Sahna Das*

* Executive Postscript Editor, Southern California Law Review, Volume 99; J.D. Candidate 2026, University of Southern California Gould School of Law; B.A. 2022, University of California, Berkeley. I am deeply grateful to Professor Jessica Clarke for her expertise and guidance in crafting this Note; the editors and staff of the Southern California Law Review for their hard work and thoughtful suggestions; and the millions of transgender, nonbinary, and gender-nonconforming people across the United States who continue to persevere against all odds.

To Defer or Not to Defer: Squaring the Administrative Procedure Act’s “Substantial Evidence” Standard of Review with the Demise of Agency Deference

April 2026April 2026Lindsey Kate Miller*

While the 2024 Supreme Court decision overruling the Chevron doctrine, Loper Bright Enterprises v. Raimondo, held that Article III courts cannot defer to agencies’ findings of law, it was silent on whether judicial deference is owed to agencies’ findings of fact. In reaching this decision, the Court interpreted language from the Administrative Procedure Act (“APA”), a comprehensive legislative scheme that governs administrative agencies’ rulemaking and adjudicative processes and prescribes the applicable standards of review for such actions, to mean that courts must review agencies’ findings of law de novo. Given this holding, one could infer that the APA, which says that courts should apply the deferential “substantial evidence” standard of review to formal agency adjudications, should be interpreted to mean that Article III courts ought to defer to agencies’ findings of fact. However, scholars have, on occasion, argued that this standard of review is unconstitutional. For these scholars, it violates the Constitution’s separation of powers principle, especially in cases involving private rights, in which Article III courts must adjudicate matters from start to end. However, Loper Bright and another 2024 Court case SEC v. Jarkesy both implicitly acknowledged and responded to some of these scholars’ concerns.

This Note builds on these developments. Specifically, it identifies one implication of the Loper Bright holding: Congress has discretion to set standards of review for agency decisions, meaning the substantial evidence standard is lawful in some cases. Additionally, it explores Jarkesy’s revival of the public/private rights distinction, in which public rights cases may be freely adjudicated by agency tribunals. This Note concludes that this distinction is crucial. Under Jarkesy, the APA’s substantial evidence standard attaches to judicial review in public rights cases and implicitly excludes cases that implicate the Seventh Amendment and private rights, since agency tribunals cannot decide Seventh Amendment, private rights cases in the first place. By clarifying the constitutional limits of the APA’s substantial evidence standard, this Note provides courts and litigators with guidance on navigating administrative law challenges in a post–Loper Bright landscape.

INTRODUCTION

It would take roughly 6,500 Supreme Courts to handle the caseload of one of the busiest federal administrative agencies¹ alone.² For many legal commentators, agencies’ significant role in defining and protecting individuals’ rights by adjudicating hundreds of thousands of cases annually is reason to grant extensive powers to these agencies.³ For others, agencies are constitutionally defective, and dangerously so, given how much influence agencies have over our daily lives.⁴ The Supreme Court has recently weighed in on this debate, giving indications that it may fall into the latter camp.⁵ Among its recent criticisms of administrative law, the Supreme Court has derided judicial deference to agencies’ interpretations of law.⁶ What the Supreme Court has yet to conclusively decide, among other issues, is whether this concept of judicial independence extends to agencies’ findings of fact.⁷

The Administrative Procedure Act (“APA”) provides a comprehensive scheme for conducting and reviewing adjudications by federal agencies, including setting the standards of judicial review for different types of findings made by agencies.⁸ When Article III courts⁹ review agencies’ decisions made pursuant to “formal” hearings prescribed by the APA, they generally examine agencies’ findings of fact under a deferential “substantial evidence” standard.¹⁰ One who reads the 2024 Supreme Court case overturning the Chevron deference doctrine, Loper Bright Enterprises v. Raimondo, may conclude that the APA’s substantial evidence standard of review passes constitutional muster: there, Chief Justice Roberts noted that section 706(2)(E) of the APA (which codified the substantial evidence standard of review) did mandate deferential judicial review of agencies’ findings of fact.¹¹ Yet, this decision did not explicitly answer whether the APA’s substantial evidence standard itself is constitutional. Rather, the Court merely asserted that Congress intended Article III courts, in applying section 706(2)(E) of the APA to reviews of formal agency adjudications, to defer to agencies’ findings of fact.¹²

In contrast, in interpreting another clause from section 706 of the APA, which says that a “reviewing court shall decide all relevant questions of law” and “interpret constitutional and statutory provisions,”¹³ the Loper Bright Court read in a “de novo” standard of review.¹⁴ This holding stands in stark contrast to decades of judicial deference to agencies’ interpretations of law.¹⁵ Furthermore, this holding brings into relief the fact that the Supreme Court can, and will, interpret the APA to meet constitutional demands. Finally, this holding begs the question: Is the substantial evidence standard of review as applied to formal agency adjudications constitutional?

Some scholars believe it is not. According to these critics, judicial deference to agencies’ findings of fact offends the Constitution’s separation of powers principle, including the judicial branch’s historical primacy, if not exclusivity, over resolving private disputes.¹⁶ However, much of this criticism came before Loper Bright and another Supreme Court case Jarkesy v. SEC¹⁷ were decided, which, taken together, shed light on these issues and contextualize these critics’ arguments.

In Jarkesy, the Supreme Court recognized that the Seventh Amendment right to a jury trial attaches when the cause of action litigated before an administrative tribunal sounds in “common law,” or is analogous to a common law claim, and the case does not involve resolution of a “public right[].”¹⁸ By implication, this allows the executive and legislative branches to freely adjudicate public rights. Consequently, in having the power to regulate public rights, Congress may also limit its power. This is supported by the Court’s finding in Loper Bright that when Congress exercises its discretionary powers, its findings in court are conclusive.¹⁹ One way Congress may limit its power is through setting the applicable standard of review for its findings of fact. Here, Congress creates agencies, meaning it can delegate to agency tribunals the power to make findings of fact and tell courts to scrutinize these findings according to the applicable standard of review.

This Note’s conclusion draws support from recent Supreme Court decisions that have, broadly speaking, cut the power of administrative agencies to make legal determinations while also yielding to agency tribunals’ findings of fact. Part I first explores background constitutional principles, including the separation of powers doctrine and scholarly criticisms of administrative law. In reviewing this material, this Part explains one of the rationales behind the APA—to bring administrative law in conformity with these constitutional principles. It also explores whether the APA, according to some scholars, fails to fully vindicate these constitutional concerns because it codifies the appellate review model,²⁰ or the idea that agency tribunals engage in initial fact-finding and law-finding, the former of which is treated deferentially by reviewing courts.²¹ After defining the substantial evidence standard of review in Part I, this Note then proceeds, in Part II, to compare Supreme Court jurisprudence on agencies’ quasi-legislative²² and quasi-judicial power,²³ concluding that, while the Roberts Court has curtailed agency power in many respects, it has spoken little on the issue of whether agency tribunals can make findings of fact, which Article III courts then deferentially review. Then, Part III synthesizes the Court’s holdings in Loper Bright and Jarkesy and concludes that, given the Court’s current formulation of permissible agency adjudication, the APA’s substantial evidence standard of review is constitutional in public rights cases.

I. BACKGROUND

A. Separation of Powers, Checks and Balances, and the Administrative State

In recent discussions of administrative powers, the Supreme Court has often invoked the Framers’ belief in a government that is divided into three branches, each possessing purely legislative, executive, or judicial powers with the ability to “check and balance” the other branches’ excesses.²⁴ According to the Court, administrative agencies, which fall under the purview of the chief executive, challenge this framework, especially when agencies exercise “quasi-legislative” and “quasi-judicial power.”²⁵

Under the separation of powers theory, the division of power between three branches of government serves two purposes: (1) it promotes each branch’s integrity through denying each branch the ability to wield the other branches’ powers, and (2) it uplifts individual liberty through curtailing government overreach.²⁶ As to the first point, the separation of powers principle “preserve[s] the integrity of” the judicial branch, for example, because it affords “judicial Power” to this branch and denies such power to the legislative and executive branches, which gives the courts and their acts credibility.²⁷ In other words, the judiciary as an institution would lose all meaning if Congress or the president could simply do what a court does. Hayburn’s Case makes this clear.²⁸ In that case, the Supreme Court took up the issue of whether Article III courts could, pursuant to a congressional act, hold hearings to determine injured veterans’ eligibility for certain government benefits.²⁹ It answered in the negative.³⁰ There, the Court noted that “the business directed by” Congress was “not of a judicial nature,” meaning that courts had no “constitutional authority” to conduct such hearings.³¹ As Mark Chenoweth noted, the holding of Hayburn’s Case “applied equally to all of the branches”: “No branch could exercise a type of power other than that vested in it by the Constitution.”³²

Additionally, the Founders recognized that when “the power of judging [was] not separated from the legislative and executive powers,” there would be “no liberty.”³³ If Congress or the president could offer their input on “Cases” and “Controversies,”³⁴ the risk of arbitrary decision-making grew. Congress and the president were political actors who were susceptible to temporary “passions” that did not necessarily promote individual rights;³⁵ meanwhile, judges had an office of “judgment,” meaning they were supposed to be independent arbiters in search of the law.³⁶ According to the Founders, separation of powers insulated courts from the political branches and their susceptibility to public pressure, such that judges could exercise their independent judgment and promote individual liberty.³⁷

Separation of powers works in tandem with the checks and balances principle, which further enhances individual liberty. In arriving at this conclusion, the Founders looked to the English court system in which judges had no tenure or salary protections, which created arbitrary decision-making marked by executive pressure on judges.³⁸ Thus, the Founders surmised that these constitutional guarantees, in addition to other structural checks and balances such as executive and legislative involvement in the selection of Article III judges, would reduce the risk of each branch wielding power without limit.³⁹ Meanwhile, Philip Hamburger, an administrative law skeptic, argues that the separation of powers and checks and balances system promotes individual liberty because liberty can be “constrain[ed]” only in certain situations: here, an individual’s liberty is constrained inasmuch as Congress can pass legislation and judges can issue judgments determining what they can and cannot lawfully do.⁴⁰ Furthermore, the executive branch binds individuals only in the sense that it implements congressional acts, such as disbursing government benefits, or seeks enforcement of the laws in the courts.⁴¹

The Three Branches of Government

The Constitution incorporates the separation of powers and checks and balances principles by vesting “legislative Powers” in Congress, “executive Power . . . in a President,” and “judicial Power” in “one supreme Court[] and . . . inferior Courts as . . . [prescribed by] Congress,”⁴² and enumerates some of these “Powers.”⁴³ Yet, the Constitution is relatively short and somewhat vague regarding the three branches’ functions, which has resulted in gap-filling by the courts to define the precise contours of legislative, executive, and judicial powers.⁴⁴

For the legislative branch, the “intelligible principle” doctrine has informed much of what Congress can do. Here, Congress’s ability to implement laws depends on telling the president what to execute.⁴⁵ However, given that laws require the vote of a majority of members of Congress to enact, sometimes have technical aspects that Congress is ill-equipped to handle, and often entail unforeseen consequences, Congress may not necessarily write laws with clarity and may leave the details to the executive to hash out.⁴⁶ So, when the executive fills in statutory gaps, they may be engaging in lawmaking power in contravention of the separation of powers principle.⁴⁷ In response to this concern, the Supreme Court in J.W. Hampton, Jr., & Co. v. United States held that not all delegations were unconstitutional; only when Congress failed to provide sufficient instructions to the executive branch, or what the Court called an “intelligible principle,” did the president impermissibly engage in lawmaking.⁴⁸ This was because an intelligible principle authorized the executive branch to do no more than act as a “mere agent of the law-making department to ascertain and declare the event upon which [Congress’s] expressed will” or policy “was to take effect.”⁴⁹ Notwithstanding recent attacks on the intelligible principle doctrine,⁵⁰ this constraint on congressional power has helped determine what legislative power is and the executive branch’s role in it.

As J.W. Hampton suggested, executive power often depends on whether Congress has given the executive branch any laws to execute. In Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court held that President Truman’s executive order, which directed the secretary of commerce to seize steel mills in order to stave off a potential strike, was unlawful because no congressional act permitted him to do so.⁵¹ Yet, presidents are not completely reliant on Congress in order to exercise executive power. As Justice Jackson noted in his influential concurrence, in some situations, the president may be able to act without congressional authorization, such as in the foreign affairs realm, because the Constitution granted the president sole discretion over this realm.⁵² In the case of a steel mill seizure, however, the Constitution did not give the president sole authority to act.⁵³

Finally, the 1803 Supreme Court case Marbury v. Madison established the core of judicial power, in which Chief Justice Marshall declared that “[i]t is emphatically the province and duty of the judicial department to say what the law is.”⁵⁴ For the Marbury Court, this “duty” meant courts had to resolve the laws in favor of the Constitution.⁵⁵ So, while Congress prevents unlawful exercises of legislative power by the executive branch by supplying it intelligible principles, courts also constrain executive action by serving as the final arbiter of the laws’ meaning.⁵⁶ This means the executive branch is necessarily constrained by courts’ definition of (1) the laws the executive branch is charged with carrying out and (2) its own executive power.

Since Marbury, the Supreme Court has continued to refine its definitions of legislative, executive, and judicial power. Yet, perhaps the most enduring theme in these cases is Marbury’s framing of judicial power as a responsibility—one that may not be abdicated⁵⁷—that courts independently resolve “[C]ases” and “[C]ontroversies.”⁵⁸ While the intelligible principle doctrine may authorize some quasi-legislative actions by the executive branch, courts’ continued insistence on this judicial duty to decide Cases and Controversies, coupled with the Supreme Court’s attacks on agencies’ rulemaking powers in Loper Bright,⁵⁹ sits uncomfortably with the idea of administrative agencies that are empowered to adjudicate individual rights.

Administrative Agencies: A Fourth Branch of Government?

As James Madison warned in 1787, “where the whole power of one department is exercised by the same hands which possess the whole power of another . . . , the fundamental principles of a free constitution[] are subverted.”⁶⁰ Many critics of agency power argue that the rapid creation and expansion of agencies, or what they call the administrative state, during the New Deal in the twentieth century embodies this risk because many modern-day agencies (arguably) perform legislative, executive, and judicial powers in contravention of the Constitution.⁶¹

However, in the same passage, Madison observed that there was “not a single instance” in state constitutions in which the branches were “absolutely separate and distinct”; in fact, he encouraged some overlapping functions between the three branches of government.⁶² Indeed, agencies have been around since our nation’s founding, which may be indicative of the Founders’ understanding of constitutionally permissible distribution of powers. For example, the First Congress authorized executive officers to decide matters such as those relating to taxation and foreign commerce.⁶³ While many administrative state opponents concede this point, they note that such categories fall within the ambit of executive discretion and were never contemplated by the Founders as unconstitutionally encroaching on the legislative or judicial branches.⁶⁴

On the other hand, proponents of agency power maintain that agencies are perfectly consistent with the Constitution because agencies actually promote the two concerns addressed by the separation of powers and checks and balances principles. To this end, such proponents argue that agencies help carry out Congress’s will (given that Congress creates agencies in the first place) while also promoting the president’s interests (through presidential appointment of agency heads).⁶⁵ Furthermore, agencies may enhance individual liberty through making “reasonable . . . judgments about the common good and the general welfare.”⁶⁶ For example, agencies oversee programs intended to prevent or curtail “subordinat[ion] [caused] by market exploitation” and harm caused by “ill health, poverty, pollution, and old age.”⁶⁷

Hamburger rejects the agency power proponents’ arguments and posits that agencies unconstitutionally “exercise . . . binding legislative and judicial powers,” given that the Constitution implicitly rejected government structures from medieval England and eighteenth-century America, which were marked by decision-making bodies that wielded legislative, executive, and judicial powers.⁶⁸ For Hamburger, agencies become unconstitutional when they have “absolute” power, or power that is (1) “extralegal,” meaning it “runs outside the law”; (2) “supralegal,” meaning that agencies rely on “judicial deference” for legitimacy; and (3) “consolidat[ed],” meaning powers that are supposed to be split between three branches are housed in one.⁶⁹ As Hamburger contends, the Founders’ beliefs were informed by English pushback against the Crown’s “prerogative” legislation, called proclamations, and “prerogative courts,” such as the Star Chamber and High Commission.⁷⁰ The Star Chamber, for example, could bind parties and prosecute crimes arising under Crown-issued proclamations.⁷¹ The Star Chamber was authorized to do so because Parliament recognized the Star Chamber’s many advantages, including its ability to dispose of cases swiftly without interference from juries that could be bribed and prosecutors who could be scared off from prosecuting.⁷² Against this backdrop, English courts, unlike the Star Chamber, refused to limit their review of prerogative actions on account of their “office of judgment, in which” judges recognized and adhered to their “duty to follow the law of the land.”⁷³ Eventually, Parliament abolished these prerogative courts in response to public criticism over such courts’ unchecked, extralegal nature and in recognition of the fact that such courts contravened the Magna Carta’s decree that “no one was to be deprived of his liberty or property, other than by the judgment of his peers or the law of the land.”⁷⁴

The Constitution corrected these unchecked dangers, Hamburger argues, through housing judicial power in Article III courts, guaranteeing juries, and providing tenure and salary to judges, among other structural protections.⁷⁵ However, agencies may threaten to undo this constitutional balance by binding people through executive-made legislation and adjudication.⁷⁶ Hamburger’s worry lies partly in the fact that, like the prerogative actors of medieval England, executive officers lack structural protections that promote independent judgment and often opt to work for the president because of personal precommitments favoring the government.⁷⁷

Cass R. Sunstein and Adrian Vermeule contest Hamburger’s version of events. Sunstein and Vermeule argue that administrative state critics like Hamburger focus too narrowly on the risk of executive overreach that they fail to recognize the Founders had other goals in mind when creating a national government.⁷⁸ For Sunstein and Vermeule, the Constitution struck a balance between checking “official abuse” and promoting “public participation and accountability, . . . efficiency in government, . . . rational and coordinated policymaking[,] and . . . the common good and overall welfare.”⁷⁹ The Founders recognized that the executive was well suited to promote these latter goals, which is why they created a powerful executive branch.⁸⁰ While recognizing that some limits to agency power are important, Sunstein and Vermeule oppose eliminating administrative agencies wholesale on constitutional grounds.⁸¹ They argue that too much judicial interference in the realm of administrative law harms individual liberty because it risks the possibility that Article III judges will weigh in on matters

that they are ill-suited to resolve, such as those involving “technocratic expertise and political accountability.”⁸²

Some Supreme Court Justices echo Hamburger’s concerns and question agencies’ constitutionality,⁸³ and the Court as a whole has a “fraught” relationship regarding its view of executive power.⁸⁴ However, as it currently stands, agencies may permissibly wield some power.⁸⁵ To what extent, including whether agencies may conclusively determine facts in some adjudications, remains to be seen.

B. The Administrative Procedure Act and the Standards of Judicial Review

The APA embodies the “appellate review model” in which agencies, much like trial-level courts, hold initial adjudicatory proceedings that courts review using different levels of deference depending on whether agencies’ findings of fact or law are at issue: in the former case, courts grant moderate deference to agencies’ findings, whereas in the latter case, no deference is given.⁸⁶ The appellate review model predates the APA and arose to prominence in the early twentieth century;⁸⁷ it also shaped “widespread demand for legislation to settle and regulate . . . administrative law and procedure” in the 1930s and 1940s.⁸⁸

1. The Origins of the APA

As Evan D. Bernick, a critic of judicial deference to agency fact-finding, notes, from the nation’s founding until the early twentieth century, “judicial review of governmental action was both narrow and deep”: “It was narrow in that complaints about governmental activity often did not entitle individuals to judicial review”; and “[i]t was deep in that, if individuals did have a complaint that triggered judicial review, that complaint was adjudicated in an especially rigorous way.”⁸⁹ Individuals were precluded from judicial interference unless they could trace government action “upon core private rights.”⁹⁰ This was because the Magna Carta, which in turn inspired the Constitution, held that if the government sought to deprive an individual of certain rights—that is, the private rights of “life, liberty, or property”—it could only do so in accordance with due process considerations and “the law[s] of the land.”⁹¹ In other words, potential deprivation of one’s private rights triggered court intervention that followed certain procedural requirements,⁹² including an obligation to “interpret[] . . . the relevant law,” which was performed by judges, and to “determin[e] . . . the relevant facts,” which was a jury task.⁹³ Congress could not run around these requirements by creating “entities called ‘courts’ ” that could not otherwise exercise judicial power or did not follow these procedural requirements.⁹⁴

Thus, when the executive branch sought to affect an individual’s private rights, it had to do so through an Article III court; it could not bind the individual pursuant to agency proceedings.⁹⁵ Once in an Article III court, any findings of fact made by the executive beforehand were treated as “merely the records of one of the parties in the case” rather than “records at law” with “presumptive verity or validity.”⁹⁶ An 1843 Supreme Court case United States v. Irving⁹⁷ is one such time in which the government had to litigate individuals’ private rights through an Article III court. In that case, the government sought to recover a federal customs collector’s “debt[s] from” the collector’s “sureties” after he had fled the country.⁹⁸ Here, the Court held that the United States Treasury’s various factual findings, including a transcript it created describing the customs collector’s account, were to be treated as “prima facie evidence,” that is, such determinations could be rebutted by other evidence and weighed by juries.⁹⁹ In other words, because the Treasury’s transcript had no “presumptive effect [like] a court record”—notwithstanding it being “an executive record . . . kept by officers who,” like the court, “were expected to exercise judgment rather than will”—the jury was free to determine the transcript’s validity and persuasiveness.¹⁰⁰

Meanwhile, the executive branch could freely adjudicate matters concerning “public rights and quasi-private privileges.”¹⁰¹ This was because “disposition of those legal interests did not require the use of ‘judicial’ power.”¹⁰² The Supreme Court “has not ‘definitively explained’ the distinction between public and private rights,”¹⁰³ but precedent has generally included among the category of public rights “claims that were understood to be held by the people as a whole,” such as

(1) proprietary rights held by government on behalf of the people, such as the title to public lands or the ownership of funds in the public treasury; (2) servitudes that every member of the body politic could use but that the law treated as being collectively held, such as rights to sail on public waters or to use public roads; and (3) less tangible rights to compliance with the laws established by public authority “for the government and tranquility of the whole.”¹⁰⁴

Privileges were created by Congress to “carry out public ends[,] . . . ‘originat[ing] with the state rather than the individual.’ ”¹⁰⁵

In 2018, the Supreme Court in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC affirmed the significance of the public/private rights distinction but essentially collapsed rights held by the people as a whole and quasi-private privileges into the umbrella of public rights.¹⁰⁶ In that case, the Court considered a challenge to the Leahy-Smith America Invents Act, which created an “inter partes” review process.¹⁰⁷ Through the inter partes review process, an individual could petition the United States Patent and Trademark Office to cancel a patent’s claims without needing to resort to a jury trial.¹⁰⁸ “[P]ublic rights,” the Court confirmed, “cover[ed] matters ‘which ar[ose] between the Government and persons subject to its authority in connection with the performance of the constitutional functions of the executive or legislative departments.’ ”¹⁰⁹ There, the Court held that the granting of—and therefore revocation of—a patent constituted a public right because patents (1) were “ ‘public franchises’ that the Government,” and therefore the public, “grant[ed] ‘to the inventors of new and useful improvements’ ”;¹¹⁰ and (2) could be granted by the executive or legislative branches “without ‘judicial determination.’ ”¹¹¹ Therefore, like all other public rights, the granting and revocation of a patent through the inter partes review process could be adjudicated by any branch of government.¹¹²

Historically, when individuals wanted to challenge agencies’ decisions in public rights cases, they had to bring separate lawsuits—rather than appeal the decisions within the agencies—in Article III courts where they would be entitled to “damages or other remedies against wayward executive officers.”¹¹³ However, as Hamburger points out, litigants had to show injury in order to recover.¹¹⁴ Once they demonstrated harm “such as distraint or payment under protest,” then courts would, like in private rights cases, treat the agencies’ findings of fact as prima facie evidence.¹¹⁵ This was because the “judicial proceedings were not extensions of the executive proceedings.”¹¹⁶ Meanwhile, judicial deference, if any were given, applied to the agencies’ findings of law. But Hamburger argues deference is too strong a term since what the courts were doing was “defer[ring] to the law,” which gave the executive discretion to determine public rights, not the agencies themselves.¹¹⁷ The 1840 decision Decatur v. Paulding illustrates this point.¹¹⁸ There, the secretary of the navy, interpreting two statutes, refused to grant a widow two pensions even though the statutes apparently required payment of both.¹¹⁹ As the pensions fell under the public rights doctrine, the executive branch had authority to regulate their disbursement.¹²⁰ Although the Supreme Court recognized it had authority to invalidate an agency’s construction of a statute, the relevant statutes permitted the secretary to interpret them.¹²¹ Thus, the Court merely deferred to the law when it upheld the secretary’s interpretation because the law said the secretary could exercise discretion in disbursing pensions.¹²²

Around the turn of the twentieth century, the appellate review model began to take shape, ushering in an era of judicial deference to agencies’ findings of fact.¹²³ In 1906, Congress passed the Hepburn Act, which modified the process by which the Interstate Commerce Commission (“ICC”) prescribed rate orders.¹²⁴ Before the Hepburn Act, the ICC had to file bills of equity in appellate-level courts for its rate orders to have binding force; afterwards, its rate orders were self-executing thirty days after their issuance.¹²⁵ Another aspect of ICC rate orders that the Hepburn Act changed was how courts reviewed challenges to such orders. Although appellate courts had previously reviewed ICC orders under a de novo standard of review, the Hepburn Act failed to prescribe the applicable standard of review for self-executing ICC rate orders.¹²⁶ In a series of Supreme Court cases following passage of the Hepburn Act, the Court, borrowing from the standard of review that courts applied to jury findings of facts, effectively read in a substantial evidence standard for reviewing self-executing ICC rate orders.¹²⁷ Under this standard, reviewing courts independently analyzed the ICC’s legal findings but deferred to its findings of fact.¹²⁸ This contrasted with decades of precedent in which courts had treated the ICC’s findings of fact as merely prima facie evidence.¹²⁹ For the Court, the substantial evidence standard made sense because the Hepburn Act, in making ICC orders self-executing, “endowed the [ICC] ‘with large administrative functions,’ ”¹³⁰ that is, the ICC had the “institutional competence to determine ‘whether [its] administrative power ha[d] been wisely exercised.’ ”¹³¹

In 1932, the Court assessed the constitutionality of a statute that required reviewing courts to defer to an agency’s findings of fact involving two private parties.¹³² In Crowell v. Benson, an employer challenged the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), which authorized the United States Employees’ Compensation Commission to issue workers’ compensation awards against employers for employee injuries occurring on navigable waters.¹³³ According to the employer, the LHWCA violated the Fifth and Seventh Amendments’ due process and jury trial rights.¹³⁴ The Crowell Court found that the LHWCA’s requirement that reviewing courts defer to an agency’s findings of fact in workers’ compensation matters was “constitutionally unproblematic” because “[t]o hold otherwise would be to defeat the obvious purpose of the legislation to furnish a prompt, continuous, expert and inexpensive method for dealing with a class of questions of fact which are peculiarly suited to examination and determination by an administrative agency.”¹³⁵ Thus, Crowell expanded an agency’s power by permitting it to adjudicate matters involving private rights with at least some binding effect (inasmuch as an agency’s findings of fact were supported by substantial evidence).¹³⁶ Yet, the Court noted that it still had an obligation to independently review (1) an agency’s findings of law as well as to (2) determine “jurisdictional” facts, or facts that had to exist for an agency to not exceed its statutory authority, and “constitutional” facts, or facts that had to exist if a challenged action was to be upheld as constitutional.¹³⁷ This, according to Chief Justice Hughes, was because in private rights cases, “the ‘essential attributes’ of the judicial decision [had to] remain in an [A]rticle III enforcement court,” which courts ensured through reviewing issues of law as well as jurisdictional and constitutional facts de novo.¹³⁸ Yet, the Court’s distinct treatment of jurisdictional and constitutional facts would not last; today, most courts do not review jurisdictional and constitutional facts de novo.¹³⁹

Around the time that the Court decided Crowell, scholars, lawmakers, and interested parties began calling for administrative reform.¹⁴⁰ Although contemporary scholars debate the driving force behind this movement,¹⁴¹ they agree that this movement coincided with a rapid expansion of administrative agencies and an agency-friendly Supreme Court as exemplified by the Crowell decision.¹⁴² For many reformers, Congress could ensure agencies acted lawfully by creating a comprehensive body of law to guide their actions while also correcting potential constitutional violations that they perceived existed in agencies.¹⁴³ One potential violation of prime importance to these reformers was some agencies’ tendency to act as “prosecutor, judge, jury, and executioner” in making the rules and enforcing them.¹⁴⁴ Thus, what would become the APA emerged as a solution to the issue of unchecked administrative power.¹⁴⁵

One thing the APA did to ensure that agencies did not exceed their constitutional limits was to distinguish formal from informal adjudication.¹⁴⁶ It subjected proceedings of the former type to stringent requirements, reflecting the idea that such cases typically needed more than objective tests, measurements, or standards to resolve, and implicated agencies’ executive and quasi-judicial powers.¹⁴⁷

Sections 554, 556, and 557 of the APA governed formal adjudications.¹⁴⁸ Under these sections, agencies conducted “trial-type, adversarial hearing[s]” that were overseen by impartial decisionmakers, typically administrative law judges (“ALJs”).¹⁴⁹ Parties had certain procedural rights in formal adjudications, including the opportunity to appear with counsel, present evidence, and cross-examine adverse parties and witnesses.¹⁵⁰ In enforcing ALJs’ independence, the APA prohibited prosecuting officers from supervising ALJs when they were involved in the same matters, and required that ALJs only communicate with interested parties “openly and upon notice” or on “[e]x parte matters authorized by law.”¹⁵¹ ALJs had other duties under the APA, such as administering oaths, issuing subpoenas, receiving and weighing evidence, and making initial or recommended decisions.¹⁵² An agency was required to conduct formal adjudications when a statute either “explicitly state[d]” that its hearings would be held “on the record” or that the agency would follow the procedures outlined by sections 554, 556, and 557 of the APA.¹⁵³

The APA also provided for judicial review of agencies’ actions.¹⁵⁴ Under the APA, an individual who suffered a legal wrong that was caused by an agency action or as authorized by statute had a right of appeal.¹⁵⁵ Often, these individuals were required to exhaust their administrative remedies before they could obtain judicial review, such as appealing an ALJ’s decision within the agency.¹⁵⁶ Once a case came before an Article III court for review, the court was required to examine the administrative record according to certain standards of review.¹⁵⁷ Per section 706 of the APA, “the reviewing court” was required to “decide all relevant questions of law, interpret constitutional and statutory provisions, . . . determine the meaning or applicability of the terms of an agency action,” and “hold unlawful and set aside agency action, findings, and conclusions” that were

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of th[e] [APA] or otherwise reviewed on the record of an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.¹⁵⁸

Under the APA, a reviewing court could apply more than one standard of review depending on the issues that came before it.¹⁵⁹ For example, while the “arbitrary and capricious” standard applied to appeals of all agency actions, an Article III court only applied the substantial evidence standard when it reviewed agency decisions made pursuant to formal agency adjudications or otherwise required by statute.¹⁶⁰ This meant the level of judicial deference afforded to agency actions turned on the issues before Article III courts, in which a court applying de novo review engaged in a more searching examination of the record than a court applying the arbitrary and capricious standard of review.¹⁶¹

The Substantial Evidence Standard of Review

The APA did not actually define the substantial evidence standard of review beyond instructing courts to apply it when reviewing formal adjudications.¹⁶² Despite the APA’s minimal guidance to reviewing courts, legislative history offers some, albeit conflicting, clues on the meaning of this standard of review. As the Senate Judiciary Committee exalted in reporting the bill to the full Senate for consideration, “[t]he ‘substantial evidence’ rule . . . [was] exceedingly important” in the context of judicial review of agency decisions and administrative law generally because this standard embodied many of the concerns underlying the APA, such as ensuring a separation of an agency’s investigatory division from its adjudicatory division, streamlining agency procedures, and promoting fairness to all parties.¹⁶³ Per this view, the substantial evidence standard of review had some constitutional significance (especially as it related to separation of powers concerns) and was meant to make clear to courts that it was “the[ir] duty . . . to determine in the final analysis and in the exercise of their independent judgment[] whether[,] on the whole record[,] the evidence in a given instance [was] sufficiently substantial to support a[n agency] finding, conclusion, or other . . . action as a matter of law.”¹⁶⁴

Yet, the committee’s emphasis on independent judgment seemed to contradict courts,¹⁶⁵ scholars, and even some parts of the Senate Report’s view of the substantial evidence standard, who argued it (1) required a considerable degree of judicial deference to agencies and (2) applied in limited circumstances, namely, to judicial review of agencies’ findings of facts.¹⁶⁶ A prominent proponent of this view was then-Attorney General Tom C. Clark, who wrote a letter in 1945 interpreting some of the APA’s provisions. Tellingly, his letter was appended to the official Senate Report, which complicates the idea that the substantial evidence standard accomplished the “important” goals articulated by the APA’s drafters, such as ensuring separation of powers through judges exercising independent judgment.¹⁶⁷

In his letter, the attorney general argued the substantial evidence standard was “intended to embody” common law, defining it as “more than a mere scintilla[,] [that is,] . . . such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”¹⁶⁸ In other words, the attorney general treated the substantial evidence standard of review for agency decisions as a corollary to the substantial evidence standard of review that appellate courts applied in evaluating jury determinations of fact.¹⁶⁹

In the jury context, the substantial evidence standard was a “highly deferential” one in which “[t]he verdict [would] stand unless [an] appellant c[ould] show that there [was] no substantial evidence to support it, considering the evidence in the light most favorable to the verdict and with all reasonable inferences deducible from the evidence drawn in support of the verdict.”¹⁷⁰ Judicial review of jury findings of fact was deferential given the Constitution expressly guaranteed resolution of civil and criminal disputes by juries.¹⁷¹ For the Founders, juries “protecte[d] American liberty” because they represented common interests, “guarding against arbitrary rule” marked by judges who could be prone to “develop[ing]” biases “in favor of government.”¹⁷² Thus, the substantial evidence standard, in the jury context, preserved the Constitution’s respect for the jury’s unique, unbiased position. Moreover, judicial deference to juries’ findings of fact was warranted given that juries were closer to the evidence.¹⁷³

Yet, if the APA codified the latter view, then the APA requires courts to apply a standard of review that might not necessarily reap the benefits or address the constitutional concerns the substantial evidence standard was designed to create or resolve, respectively. Perhaps a different standard would be warranted to capitalize on agencies’ unique, often technical, expertise or address the separation of powers concerns that agency adjudication may raise. For administrative law critics like Hamburger, the fact that “an administrative agency is not a jury” is another reason why agencies may be constitutionally defective.¹⁷⁴ Whereas juries do not “have . . . precommitments” to the government, ALJs often do.¹⁷⁵ Therefore, as agency skeptics’ theory goes, ALJs can actually threaten, rather than protect or promote, individual liberty. Other scholars counter Hamburger’s fears because, like juries, ALJs are close to the evidence that parties present.¹⁷⁶ Also, ALJs often have specialized knowledge and expertise that make them particularly suited to resolve the matters that come before them.¹⁷⁷ Meanwhile, a jury, which is comprised of laypersons, is less likely to understand the facts that come before agency tribunals.¹⁷⁸ Thus, a jury may misinterpret technical facts, passing misguided (that is, biased) judgment.

No matter the concerns the latter view may raise, the attorney general’s characterization of the substantial evidence standard has won the day.¹⁷⁹ Indeed, for several decades after the APA’s passage, “agencies proceeded as if” the law had not “change[d] much of anything.”¹⁸⁰ Around the 1960s, as agencies began to rely more heavily on an informal rulemaking procedure created by the APA called “notice-and-comment” rulemaking, courts began to develop common law doctrines to constrain this power.¹⁸¹ On the other hand, courts seldom addressed agencies’ adjudicatory powers, including clarifying what the substantial evidence standard required, given the trend toward notice-and-comment rulemaking.¹⁸²

Universal Camera Corp. v. NLRB¹⁸³ and Allentown Mack Sales & Service, Inc. v. NLRB¹⁸⁴ are two such cases that interpreted the APA’s substantial evidence standard of review. In both, the Supreme Court characterized the standard as akin to the standard applicable to jury findings of facts.

In Universal Camera, the Court reviewed a National Labor Relations Board (“NLRB”) order that had found an employer’s dismissal of an employee was not retaliatory even though the dismissal followed the employee testifying against his employer in a collective bargaining matter.¹⁸⁵ The relevant statute, the Wagner Act, merely said that reviewing courts were to treat the NLRB’s findings of fact as conclusive “if supported by evidence.” Although the words substantial evidence were absent from the Wagner Act, the Court, citing precedent, nevertheless determined this language meant that the relevant standard of review for NLRB orders was the substantial evidence standard of review.¹⁸⁶ To this end, the Court characterized substantial evidence as meaning “more than a mere scintilla. It mean[t] such relevant evidence as a reasonable mind m[ay] accept as adequate to support a conclusion.”¹⁸⁷ This characterization of the substantial evidence standard of review tracked with the substantial evidence standard used in jury trials, in which courts also treated it as a “reasonableness test.”¹⁸⁸ To be sure, the Court went on to explain that substantial evidence meant, regarding judicial review of agencies’ findings of facts, as

[doing] more than creat[ing] a suspicion of the existence of the fact[s] to be established. . . . [I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.¹⁸⁹

Yet, because section 706 of the APA required reviewing courts to analyze the whole record, the Court determined that Congress intended to reverse common law only with respect to the fact that “substantiality [had to] be determined in . . . light of” the whole record.¹⁹⁰ This meant reviewing courts had to “take into account whatever in the record fairly detract[ed] from its weight.”¹⁹¹

This rule was probably not much different from the substantial evidence standard in the jury trial context. Under the latter standard, courts had to draw “all reasonable inferences” in favor of the jury.¹⁹² Similarly, as noted above, the Universal Camera Court used the term “fairly detracting from its weight” in defining the substantiality test.¹⁹³ This suggests courts may not adopt the agencies’ findings of fact if doing so means ignoring relevant context. After all, drawing reasonable inferences requires courts to consider the validity of facts in light of other facts.¹⁹⁴ Also, Universal Camera did not require courts to draw inferences against the jury, only that courts must take conflicting facts into account.¹⁹⁵

Allentown Mack, decided forty years after Universal Camera, similarly suggested the APA’s substantial evidence standard operated like the substantial evidence standard applicable to jury findings of fact. In that case, a union successfully argued before the NLRB that a factory’s decision to no longer recognize the union after the factory conducted a poll gauging employee support for the union constituted an “unfair labor practice.”¹⁹⁶ The Court reviewed the NLRB’s order under the substantial evidence standard of review and held that the substantial evidence standard was an “objective test.”¹⁹⁷ As an objective test, a reviewing court employing the substantial evidence standard of review had “no room” to afford “deference to an agency’s eccentric view of what a reasonable factfinder ought to demand.”¹⁹⁸ Despite this limitation, Justice Scalia noted that the substantial evidence test still required considerable deference to an agency’s findings of fact: a court’s role was merely “to ensure” that an agency “achieve[d] minimal compliance with [its] obligation” to “draw all those inferences that the evidence fairly demand[ed] . . . , which [was] the foundation of all honest and legitimate adjudication.”¹⁹⁹ Using the same “fairly” language used in the Universal Camera decision, Allentown Mack confirmed that the substantial evidence standard of review was a reasonableness test.

Yet, Allentown Mack concluded that the NLRB’s findings of fact were not supported by substantial evidence.²⁰⁰ For Justice Scalia, the NLRB improperly ignored some evidence before it, including an employee’s statement to the factory that he was not being adequately represented “for the [union dues that] he was paying.”²⁰¹ Taken together, these facts constituted “reasonable, good-faith grounds” on the factory’s part to doubt union support and therefore supported its decision to survey employee support of the union and revoke its recognition of the union.²⁰² Allentown Mack’s holding that the factory’s decision to revoke its recognition of the union did not constitute an unfair labor practice, contrary to the NLRB’s finding, fits uncomfortably with the Court’s description of the substantial evidence standard of review.²⁰³ This suggests the Court may actually apply the standard less deferentially than it claims it should. This holding may also represent a growing trend toward judicial scrutiny of agency power, or it may simply embody a typical application of the substantial evidence standard of review. Whatever proposition Allentown Mack may stand for, however, is beyond the scope of this Note; what is clear is that the Court continues to recognize a duty to give agencies’ findings of fact some “benefit of the doubt” and that the substantial evidence standard of review largely mirrors the standard for reviewing jury findings of fact.²⁰⁴ In fact, as Justice Breyer argued in a separate opinion in Allentown Mack, the majority’s holding effectively changed the standard of review to one that “look[ed] like an ordinary jury standard that . . . reflect[ed] not an agency’s specialized knowledge of the workplace, but a court’s common understanding of human psychology.”²⁰⁵

Agency skeptics have responded to Universal Camera and Allentown Mack’s endorsements of the deferential substantial evidence standard by raising several constitutional concerns. For one, agency skeptics worry that agency fact-finding may be limited since agencies have discretion over whether to permit discovery.²⁰⁶ Furthermore, even when agencies grant discovery, they argue that discovery may be nominal, inequitable, or less effective as compared with discovery in Article III adjudications: in agency proceedings, although private parties “can ask an agency to issue a subpoena,” they have no guarantee that it will “be answered until the hearing”; meanwhile, an agency “can demand testimony and documents long before any hearing—even before [it] brings charges.”²⁰⁷ This stands in contrast to Article III adjudication, in which civil litigants have “equal access to discovery,” and criminal prosecutors have a duty to share information with the defendants.²⁰⁸ Additionally, unlike federal courts, critics suggest that agencies are not required to adhere to federal rules of evidence or procedure, and can “make up certain rules as they go.”²⁰⁹ For example, the Securities and Exchange Commission (“SEC”) has a “Commission[] Rules of Practice, [in which] hearsay is generally permitted, depositions are limited, discovery is generally not permitted,” and ALJs must make initial decisions within “aggressive timelines.”²¹⁰ This is particularly alarming for these agency skeptics, since the purpose of evidence rules, for example, is to regulate the fact-finding process and improve its reliability.²¹¹ Compounding the issue is that parties might not have control over what agencies include in the factual record or be able to supplement it on appeal.²¹² This could be concerning because Article III courts’ review of agencies’ findings of facts are based on the administrative record.²¹³ Moreover, parties often have no opportunity for de novo review at any time in the appeals process, including during intermediate appeals at the agency level, since “many agencies operate under a presumption that . . . [its] internal appellate authority . . . will adopt the ALJ’s ruling.”²¹⁴ Lastly, this process may be circular because “agencies have a vested interest in protecting their power”; as agency skeptics charge, anyone who challenges agencies’ procedures may be out of luck because “no agency is going to rule that its procedures or structure are unconstitutional.”²¹⁵

Since the rise of the appellate review model, the Supreme Court largely ignored these concerns and had instead actually expanded agency power in several respects. That all changed in 2024 when the Court first overruled a landmark 1984 decision that had held that courts had to defer to agencies’ findings of law in certain circumstances,²¹⁶ and then revived the public/private rights doctrine, finding that claims involving private rights must be resolved by a jury in an Article III court.²¹⁷ The next Part explores these developments.

II. THE SUPREME COURT ON ADMINISTRATIVE DEFERENCE

The Supreme Court’s jurisprudence on administrative law tends to fall into one of two categories depending on whether an agency’s actions can be characterized as quasi-legislative or quasi-judicial in nature. This tracks the APA’s distinction of agency rulemaking from adjudication.²¹⁸ While this Note is primarily interested in quasi-judicial power, given that appeals of formal adjudications under the APA trigger the substantial evidence standard of review,²¹⁹ a line of cases dealing with judicial deference to agencies’ quasi-legislative power suggests constitutional limits to agencies’ fact-finding. Section II.A analyzes three deference doctrines that the Supreme Court has applied to judicial review of agencies’ findings of law and has subsequently refined or dismantled entirely. Section II.B then reviews recent quasi-judicial decisions that pave the way for this Note’s conclusion, that the APA’s substantial evidence standard of review is constitutional.

A. Quasi-Legislative Decisions

Skidmore v. Swift & Co., which was decided while Congress debated the merits of administrative reform like the APA, was the first of three forms of deference²²⁰ to agencies’ findings of law that the Court has recognized.²²¹ It is also the most enduring common law deference doctrine as it continues to be cited and applied by the Court today.²²² The other deference doctrines include Chevron deference, which was overruled in Loper Bright, and Auer deference, which the Court may also discard if one takes Loper Bright’s logic to its natural limit.²²³ At their most basic level, Skidmore, Chevron, and Auer deference doctrines answer the question of whether and when courts should take into account agencies’ interpretations of ambiguous statutes and how much weight such interpretations should hold.²²⁴

Skidmore Deference

Skidmore involved a challenge to the meaning of “overtime” as set out by the Fair Labor Standards Act (“FLSA”).²²⁵ Here, the plaintiffs worked at a packing plant as daytime firefighters but also agreed to work several nights to respond to fire alarms.²²⁶ Although the plaintiffs were paid each time they answered alarms, the alarms seldom went off; this meant the plaintiffs spent hours at the plant without compensation.²²⁷ The plaintiffs alleged this nighttime work qualified as “overtime,” and thus they were entitled to compensation for both waiting for and responding to fire alarms.²²⁸ Although the FLSA did not define overtime in this context, the Court looked to an interpretive bulletin promulgated by the administrator of the Department of Labor’s Wage and Hour Division for guidance.²²⁹ According to the administrator, whether waiting time counted as working time (and therefore counted toward overtime compensation) depended “upon the degree to which [an] employee [was] free to engage in personal activities during periods of idleness when he [was] subject to call and the number of consecutive hours that the employee [was] subject to call without being required to perform active work.”²³⁰ The Court held this interpretation was “entitled to respect” given the administrator’s “policies [were] made in pursuance of official duty,” one in which the administrator had much more extensive knowledge of labor issues than would “likely . . . come to a judge in a particular case.”²³¹ However, the Skidmore Court recognized that judicial deference to an agency’s “interpretations and opinions” had limits: deference could be understood as a sliding scale, depending on a number of factors including (1) the “thoroughness evident in [an agency’s] consideration”; (2) the “validity of [an agency’s] reasoning”; (3) an interpretation or opinion’s “consistency with earlier and later pronouncements”; and (4) “all those factors which give [an interpretation or opinion] power to persuade, if lacking power to control.”²³²

Chevron Deference and the Loper Bright Response

Forty years later, the Court revisited the question of judicial deference to agency interpretations of the law in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. In what would become known as Chevron deference, the Court dramatically increased agencies’ power to expound on the meaning of ambiguous statutes by mandating that reviewing courts adopt agencies’ reasonable interpretations of such statutes when agencies defined the statutes through regulations.²³³ Whereas Skidmore deference was narrow (applying to nonbinding agency materials that interpreted ambiguous statutes) and flexible (giving courts discretion over how much weight they could afford agency interpretations), Chevron deference was wide (applying to agency regulations and orders) and inflexible (requiring courts to adopt agency interpretations of ambiguous statutes).²³⁴

Chevron dealt with a 1977 amendment to the Clean Air Act (“CAA”).²³⁵ Under the CAA, “ ‘nonattainment’ States,” or states that had not fulfilled certain air quality requirements set by a previous statute, could authorize “ ‘new or modified major stationary sources’ of air pollution” only in certain situations.²³⁶ In enforcing the CAA, the Environmental Protection Agency (“EPA”) eventually promulgated a regulation that interpreted the meaning of a “stationary source” under the statute.²³⁷ In Chevron, the Supreme Court recognized the term stationary source as used in the CAA was ambiguous and thus answered whether the EPA could validly interpret such term through its regulation that would be binding on permit applicants.²³⁸ The Court concluded in the affirmative.²³⁹ Specifically, the Court held that regulations interpreting statutes “control[ed]” if two conditions were met: (1) Congress did not unambiguously express its intent regarding how a statute was to be construed, and (2) an agency’s construction of a statutory term was reasonable.²⁴⁰ In arriving at this conclusion, the Court pointed to a history of judicial deference to agencies’ interpretations of statutes in cases involving technical knowledge and competing policy interests.²⁴¹ Like precedent, the CAA involved complex subject matter that agencies were uniquely qualified to address; the Court suggested that Congress may not have had the requisite expertise to adequately define stationary sources and wanted to delegate this task to a more knowledgeable body, the EPA.²⁴² Moreover, in enacting the CAA, Congress sought to balance economic and environmental interests.²⁴³ Congress may not have had the time, foresight, or votes to sort out minute details of contested legislation and so either intentionally or unintentionally left this gap to the EPA to fill.²⁴⁴ Given these considerations, the EPA reasonably interpreted an ambiguous term because it promulgated the regulation pursuant to extensive agency studies and was consistent with a concern for “economic growth.”²⁴⁵ Thus, the Court upheld the regulation.²⁴⁶

Shortly after Chevron, Justice Breyer and Justice Scalia further clarified the Court’s holding. According to the Justices, Chevron deference was not motivated by separation of powers concerns, or the idea that judicial deference to agencies’ interpretations of statutory ambiguities “guard[ed] against judicial displacement of political judgments.”²⁴⁷ Rather, “Chevron . . . rest[ed] on [one] simple idea: Courts defer[red] to agenc[ies’] interpretations of law when, and because, Congress has told them to do so. . . . [In other words,] the national legislature retain[ed] control of the deference question.”²⁴⁸

Around the turn of the twenty-first century, the Supreme Court revisited the Chevron doctrine and created what would be known as Chevron “[s]tep [z]ero.”²⁴⁹ Step zero of the Chevron doctrine required that, for an agency interpretation to be entitled to judicial deference, such interpretation needed to “carry the force of law.”²⁵⁰ In United States v. Mead Corp., the Court explained that, as Congress authorized agencies to carry out specific but complex procedures, such as notice-and-comment rulemaking, it followed that Congress probably did not intend that agencies could also conclusively bind individuals through less specific or simpler procedures, such as “policy statements, . . . manuals, and enforcement guidelines,” too.²⁵¹ Instead, these kinds of agency actions should be analyzed through the less deferential Skidmore lens.²⁵²

Although Mead appeared to set the stage for overturning Chevron deference, the Court’s 2005 decision in National Cable & Telecommunications Ass’n v. Brand X Internet Services actually reinforced and expanded it, marking the doctrine’s high-water mark. In Brand X, the Supreme Court held that courts must always apply the Chevron analysis to agencies’ interpretation of statutes—even if prior court holdings interpreted the same statutes—unless prior courts found the relevant statutory terms were unambiguous.²⁵³ Justice Scalia dissented, arguing Brand X’s holding was “bizarre,” if not “unconstitutional,” in light of Mead.²⁵⁴ Justice Scalia noted that if an agency, for example, interpreted an ambiguous statute in a manual, but the Supreme Court rejected this interpretation because it lacked the force of law, this holding would not have stare decisis effect.²⁵⁵ This was because the agency could simply issue a subsequent regulation or order (that is, an act that carried the force of law) interpreting the statute the same way, and a subsequent court applying the Chevron analysis would uphold it if the interpretation was reasonable, notwithstanding the fact that the Supreme Court previously held that same interpretation was unlawful.²⁵⁶

Justice Scalia’s dissent was a sign of future Chevron criticisms. Future decisions chipped away at the Chevron doctrine²⁵⁷ until it was finally overruled in Loper Bright.²⁵⁸ In Loper Bright, the Court decided whether regional fishery management councils under the National Marine Fisheries Service (“NMFS”) could require Atlantic herring fishermen to have observers aboard their vessels and to bear these costs.²⁵⁹ Although the Magnuson-Stevens Fishery Conservation and Management Act governed this situation because it enumerated certain situations in which the management counsels could impose observer-related costs on vessels, it was silent as to whether this option extended to Atlantic herring fishing operations.²⁶⁰ Rather than determine whether the NMFS reasonably interpreted an ambiguous statute, the Court threw out the Chevron analysis altogether. “Article III . . . assign[ed] to the Federal Judiciary the responsibility and power to adjudicate ‘Cases’ and ‘Controversies,’ ” Chief Justice Roberts declared.²⁶¹ This duty extended to interpreting the laws.²⁶² The APA “incorporate[d] th[is] traditional understanding of the judicial function” because it codified that courts decided “all relevant questions of law, interpret[ed] constitutional and statutory provisions, and determine[d] the meaning or applicability of the terms of . . . agency action[s].”²⁶³ That statutes were sometimes ambiguous did not mean agencies had the authority to clarify them.²⁶⁴ Indeed, the Framers recognized that, although laws were thoroughly deliberated with “the greatest technical skill,” they would still contain ambiguities.²⁶⁵ To address this, Article III of the Constitution vested courts with the authority—affirmed in Marbury and the APA—to serve as the final arbiter of the laws’ meaning.²⁶⁶ To the Court, Chevron deference subverted the Constitution and the APA’s directives by requiring courts to abdicate their responsibility to interpret the laws.²⁶⁷ In effect, the Constitution and the APA required courts to uncover a statute’s “best” meaning rather than one of many “reasonable” meanings.²⁶⁸

Loper Bright did not prohibit judicial deference to agencies’ interpretations of law wholesale. It suggested Congress could still enact statutes delegating authority to agencies to “exercise [some] discretion.”²⁶⁹ In such a case, “the best reading of a statute” was that an agency had statutory authority to determine what certain statutory terms meant.²⁷⁰ Ultimately, a court still determined what a statute meant: it just decided in that scenario that a statute delegated discretionary power to agencies to carry out the laws.²⁷¹ While reaching a different outcome, the Loper Bright Court ostensibly endorsed the justification offered in favor of Chevron deference by Justice Breyer and Justice Scalia, that is, that Congress created legislation telling courts that they were to defer to agencies’ interpretations of statutes; here, the APA told reviewing courts that they were not to defer to agencies’ findings of law. Thus, Congress had power to create statutes, including modifying the APA, so that it delegated to agencies the responsibility to define statutory terms.²⁷² Finally, the Court clarified that Skidmore deference was still good law since agencies’ interpretations and opinions “constitute[d] a body of experience and informed judgment” that could guide a court’s analysis of ambiguous statutes.²⁷³

Auer Deference

While Loper Bright clarified the limits of Chevron and Skidmore deference, it did not discuss the fate of Auer deference. Creating a third form of judicial deference to agencies’ interpretations of law, Auer v. Robbins held that an agency’s interpretation of an ambiguous regulation was “controlling unless [it was] ‘plainly erroneous or inconsistent with the regulation.’ ”²⁷⁴ Arguably, Auer deference is still good law since the Supreme Court had the opportunity to overrule Auer in the 2019 case Kisor v. Wilkie but declined to do so.²⁷⁵ Rather, Kisor supplied a limiting principle to Auer deference, noting that a court could defer to an agency’s interpretation of an ambiguous regulation only after concluding the regulation was “genuinely ambiguous.”²⁷⁶ A regulation was genuinely ambiguous if a court “exhaust[ed] all [its] ‘traditional tools’ of construction” to no avail.²⁷⁷

On the other hand, Auer deference could be on its way out if one considers Chief Justice Roberts’s reasons for overruling Chevron deference in Loper Bright. Whereas, for the Roberts Court, Chevron deference contravenes the APA’s command that courts independently determine questions of law, Auer deference also seems to contradict the APA because the APA “directs courts to ‘determine the meaning or applicability of the terms of . . . agency action[s],’ which includes regulations.”²⁷⁸ Another issue with Auer deference, like Chevron deference, involves separation of powers concerns. Justice Scalia questioned Auer deference because it “arrogat[ed]” executive power by enabling agencies to “write . . . law[s] and . . . interpret” such laws.²⁷⁹ Similarly, Chevron deference interfered with “judges[’] [ability] to exercise . . . judgment independent of influence from the political branches.”²⁸⁰ This could explain why Justice Breyer and Justice Scalia did not defend Chevron deference on separation of powers grounds.

B. Quasi-Judicial Decisions

Loper Bright represents the Roberts Court’s view that, regarding agencies’ quasi-legislative powers, agencies have little power to say what the law is. Meanwhile, as to agencies’ quasi-judicial powers, the Court tends to posit that agencies have little power to say who the law applies to: in Axon Enterprise, Inc. v. FTC, the Court held that agencies’ ability to channel certain claims through agency tribunals—in which ALJs promulgate orders subject to review by intra-agency appeals boards—before these claims are entitled to Article III review is limited in certain circumstances;²⁸¹ SEC v. Jarkesy then found that the Seventh Amendment sometimes forbade agencies from binding individuals altogether.²⁸²

Axon Enterprise and Exhaustion of Administrative Remedies

Axon Enterprise traces its holding to Thunder Basin Coal Co. v. Reich.²⁸³ In Thunder Basin, the Court considered a coal company’s challenge to a regulation under the Mine Act, which required mine operators to “post . . . information” indicating whom miners had selected to represent them during required site “safety inspections.”²⁸⁴ Initially, the coal company asked the Mine Safety and Health Administration (“MSHA”) to find that the miners representative requirement violated the National Labor Relations Act’s collective-bargaining provisions, but the MSHA declined.²⁸⁵ Before the secretary of labor sought enforcement of the regulation, the company sought injunctive relief in a district court.²⁸⁶ Additionally, the company argued that the Mine Act’s judicial review scheme—in which ALJs under the Federal Mine Safety and Health Review Commission were supposed to resolve mine operators’ complaints, subject to review by the full Commission, before employers could seek review by Article III appeals courts—violated its Fifth Amendment due process rights.²⁸⁷ Once before the Supreme Court, the Court held that Congress could channel certain claims through agency tribunals and preclude Article III jurisdiction until agencies had issued final orders.²⁸⁸ In so holding, the Court articulated three factors that should aid courts’ inquiry in determining whether Congress “inten[ded]” to preclude review: (1) whether “a finding of preclusion [would] foreclose all meaningful judicial review”; (2) whether a party’s “claims were ‘wholly collateral’ to a statute’s review provisions”; and (3) whether these “claims were ‘outside [an] agency’s expertise.’ ”²⁸⁹

Here, circumstances indicated that Congress intended the Mine Act to preclude district court jurisdiction.²⁹⁰ For one, the Mine Act’s comprehensive review scheme applied to all Mine Act violations and did not “distinguish between pre-enforcement and post-enforcement challenges.”²⁹¹ That the Mine Act provided for appellate court review suggested that the coal company, even if forced to bring its claim to the Commission first, could eventually obtain meaningful judicial review.²⁹² Although the Commission probably could not resolve the company’s constitutional claim, the Court was satisfied that the company had recourse given the Mine Act’s appellate review provision.²⁹³ After all, Congress created the Commission to resolve all claims that fell under the Mine Act and, as such, had requisite jurisdiction and experience to handle the company’s miners representative’s claim.²⁹⁴ This meant that the company’s purpose for filing its suit in the district court, to ask a court to declare that they did not need to post information regarding the miners’ representative, meant it brought a claim that fell within the Mine Act’s review provisions and implicated the Commission’s expertise.²⁹⁵

Axon Enterprise found the Thunder Basin factors counseled in favor of finding initial district court jurisdiction when individuals alleged the SEC and Federal Trade Commission (“FTC”) were structurally defective or that any intra-agency proceedings brought against them were unlawful.²⁹⁶ In this case, the Court handled claims brought by Michelle Cochran, whom the SEC charged with “fail[ure] to comply with” statutory “auditing standards,” and Axon Enterprise, which the FTC alleged violated its “ban on unfair methods of competition.”²⁹⁷ After the SEC and FTC initiated agency proceedings against Cochran and Axon Enterprise, Cochran and Axon Enterprise each brought lawsuits in federal district court alleging the agencies’ double-for-cause removal tenure protections for ALJs meant ALJs were unconstitutionally “insulate[d] . . . from presidential supervision.”²⁹⁸ Axon Enterprise also argued that the FTC’s dual “prosecutorial and adjudicative functions” violated the separation of powers principle as well.²⁹⁹

The Court explained that 28 U.S.C. § 1331, which codified federal question jurisdiction, gave federal district courts jurisdiction to hear parties’ challenges to agency actions, and Congress could take away jurisdiction in whole or in part.³⁰⁰ It thus explained that Thunder Basin was actually a two-step process in which courts first asked whether Congress created a “comprehensive review process” that deprived ordinary district courts of jurisdiction, and, if so, whether the claims brought before them were “of the type[s that] Congress intended to be reviewed within” such scheme.³⁰¹ It was during this second step that courts would apply the Thunder Basin factors.³⁰²

The Court analyzed Cochran and Axon Enterprise’s claims by comparing its findings in Thunder Basin and other cases, Elgin v. Department of the Treasury³⁰³ and Free Enterprise Fund v. Public Co. Accounting Oversight Board.³⁰⁴ Unlike Thunder Basin and Elgin, in which the parties challenged agencies’ “specific substantive decision[s],” such as fining a company or firing an employee, here, Cochran and Axon Enterprise made generalized claims about the validity of the SEC and FTC’s “structure or very existence.”³⁰⁵ Thus, the Court reasoned Cochran and Axon Enterprise’s double-for-cause removal claim (and Axon Enterprise’s prosecutor-and-adjudicator claim) were likely not those that Congress sought to filter through the agencies’ tribunal systems.³⁰⁶

To be sure, the Court applied the Thunder Basin factors and arrived at the same conclusion. Unlike Thunder Basin and Elgin, in which appeals courts could effectively reverse the harm suffered by the coal company and the discharged government employee in Elgin, Michael Elgin, by revoking the company’s fine or reinstating Elgin, here, an appeals court could not undo Cochran and Axon Enterprise’s harm of “having to appear in [potentially unlawful] proceedings.”³⁰⁷ In other words, the Court found that Cochran and Axon Enterprise’s “here-and-now injury” precluded any meaningful review of their constitutional claims.³⁰⁸ Moreover, like Free Enterprise, in which Free Enterprise challenged a tribunal’s existence, Cochran and Axon Enterprise’s constitutional claims were wholly collateral to the SEC and FTC’s proceedings because Congress established these agencies’ tribunals to merely adjudicate claims relating to auditing practices and business mergers, not constitutional issues.³⁰⁹ Finally, Cochran and Axon Enterprise’s claims “raise[d] ‘standard questions of administrative’ and constitutional law, detached from ‘considerations of agency policy,’ ” meaning such claims did not implicate the SEC or FTC’s expertise.³¹⁰ This was unlike Thunder Basin and Elgin, in which the coal company’s and employee’s claims were “intertwined with . . . matters on which the [agencies were] expert.”³¹¹

The Axon Enterprise majority opinion did not actually rule on the merits of the constitutional claims brought by Cochran or Axon Enterprise. In fact, Justice Kagan expressly avoided answering whether the SEC or FTC tribunal structures violated the Constitution’s separation of powers principles.³¹² However, Justice Thomas did address this issue in a concurring opinion.³¹³ For Justice Thomas, Congress impermissibly encroached on Article III courts’ judicial power when it channeled adjudication of certain claims through administrative tribunals with deferential judicial review on the back end.³¹⁴ Whether Congress could empower agencies to conduct hearings that would result in the “impos[ition of] orders and penalties on private parties” hinged on the types of rights it sought to regulate.³¹⁵ The types of rights Congress implicated when it empowered the SEC and FTC to adjudicate claims like those the agencies brought against Cochran and Axon Enterprise were private in nature, and therefore the only way such claims could be resolved was by complete Article III adjudication.³¹⁶ Like Hamburger and Bernick, Justice Thomas looked to history for his analysis.³¹⁷ As Justice Thomas explained, courts historically adjudicated private rights, or rights invoking the Constitution’s guarantees of “life, liberty, and property,” from start to end; meanwhile, agencies could resolve matters involving public rights, or those “belong[ing] to the people at large.”³¹⁸ “[M]onetary fines,” including those that the SEC and FTC sought to impose on Cochran and Axon Enterprise, were historically regarded by courts as “property” interests; accordingly, “[a] civil penalty was a type of remedy at common law that could only be enforced in court[].”³¹⁹ That the APA codified the appellate review model did not mean courts no longer had a duty to resolve claims involving private rights.³²⁰ Rather, the Constitution obligated Article III courts to resolve these claims; Article II tribunals had no role in such proceedings.³²¹ This meant that deferential judicial review of agencies’ findings of fact in these cases was constitutionally questionable because it asked judges to exercise independent judgment in only some respects, that is, only as to matters of law.³²² Yet, as Justice Thomas argued, the Constitution “treat[ed] factfinding [no] differently from deciding questions of law” because Article III explicitly granted appellate jurisdiction to the Supreme Court on matters of fact and law.³²³ This suggested courts, like their eighteenth- and nineteenth-century predecessors, should not “defer to the executive record[s] or the facts supposedly established by it” in cases involving private rights.³²⁴

Jarkesy and the Seventh Amendment

Jarkesy responded to some of Justice Thomas’s concerns regarding agencies’ power to adjudicate claims involving private rights.³²⁵ In Jarkesy, the Supreme Court assessed the constitutionality of the Dodd-Frank Act, which gave the SEC the choice to adjudicate an “enforcement action” within the agency or “in federal court.”³²⁶ In this case, the SEC opted to resolve securities fraud charges it brought against George Jarkesy, Jr. and Patriot28, LLC within the SEC.³²⁷ The Court concluded that the SEC could not choose where it adjudicated securities fraud claims because these claims clearly implicated the Seventh Amendment and its guarantee of “trial[s] by jury” in Article III courts.³²⁸

The Court noted that agencies could sometimes adjudicate claims in executive branch tribunals.³²⁹ Specifically, agencies could adjudicate claims it brought against third parties (and vice versa) if (1) such claims did not “implicate the Seventh Amendment” or, (2) if such claims did implicate the Seventh Amendment, such claims fell under the “ ‘public rights’ exception.”³³⁰ The Court explained the Seventh Amendment covered “[s]uits at common law,” which meant a claim implicated the Constitution’s

guarantee of a jury trial if the suit was “not of equity or admiralty jurisdiction.”³³¹

Scholars have noted that “suits at common law” refers to the types of cases that courts heard at the time of the Seventh Amendment’s enactment, with the Federal Judiciary Act of 1789 serving as a key reference point.³³² Section 9 of the Federal Judiciary Act of 1789 gave district courts jurisdiction over “all suits for penalties and forfeitures incurred,” and that “trial of issues in fact . . . in all causes except civil causes of admiralty and maritime jurisdiction[] shall be by jury.”³³³ As John Gibbons pointed out, that “the Framers considered it appropriate for cases involving ‘penalties and forfeitures incurred . . . ’ to be heard by civil juries [was] powerful evidence that the common law presumption was that such cases would be brought in common law courts, rather than equity courts.”³³⁴

In addition to common law claims, the Jarkesy Court found that “statutory claim[s]” that were “legal in nature” also implicated the Seventh Amendment.³³⁵ A statutory claim was legal in nature if the cause of action and remedy, much like common law claims, “sound[ed] in . . . law.”³³⁶ A claim’s remedy was the “ ‘more important’ consideration,” since some causes of action sounded in both law and equity.³³⁷ In Jarkesy, the statutorily created cause of action, securities fraud, resembled common law fraud since “[b]oth target[ed] . . . misrepresent[ation] or conceal[ment of] material facts” and also used similar terms, such as “fraud.”³³⁸ Moreover, the SEC sought money damages against Jarkesy and Patriot28, which was a “common law remedy” because it served to “punish culpable individuals,” rather than to restore parties to the “status quo.”³³⁹ Indeed, the relevant laws, the Securities Act, the Securities Exchange Act, and the Investment Advisers Act, “establish[ed] three ‘tiers’ of civil penalties” in securities fraud cases, in which each tier was a function of how culpable a defendant was.³⁴⁰ Thus, given that the securities fraud charges brought against Jarkesy and Patriot28 were punitive, the Court concluded that these claims implicated the Seventh Amendment.³⁴¹

Since the SEC’s claims implicated the Seventh Amendment, the Court turned to its analysis of the public rights exception.³⁴² The Court noted the public rights exception was narrow and historically applied in cases involving “the collection of revenue[,] . . . foreign commerce[,] . . . immigration[,] . . . relations with [Native American] tribes, . . . the administration of public lands, . . . and the granting of public benefits such as payment to veterans, . . . pensions, . . . and patent rights.”³⁴³ Typically, public rights traced their origins to some “government[] prerogative[]”; for example, in the context of tariffs, the political branches “traditionally held exclusive power over” whether to impose tariffs on other governments.³⁴⁴ In effect, the Court adopted Oil States’ definition of public rights as those rights that belonged to the public at large along with other privileges given to individuals for public policy reasons.³⁴⁵ Here, the SEC’s claim did not implicate this definition because it sought to “target the same basic conduct as common law fraud,” rather than regulate some matter implicating the legislature or executive’s prerogative powers.³⁴⁶ Thus, the Court held that the SEC was required to bring its claims against Jarkesy and Patriot28 in an Article III court lest it violate their Seventh Amendment right to a jury trial.³⁴⁷

Importantly, this holding brought the Supreme Court’s understanding of Article II adjudication in line with pre-twentieth-century courts’ understanding, at least when Seventh Amendment interests are involved: when a claim implicates one’s private rights, an agency cannot adjudicate it. Only an Article III court can.

III. MAPPING THE LIMITS OF THE APA’S SUBSTANTIAL EVIDENCE STANDARD OF REVIEW

If Jarkesy held that claims that invoke the Seventh Amendment and involve private rights must be adjudicated by Article III courts, does that mean agency tribunals can hear claims that involve public rights? If agency tribunals have power to adjudicate at least some claims, can Article III courts hear appeals to such tribunals’ decisions? Moreover, how much deference should these courts accord these tribunals’ findings of fact? This Note argues that Jarkesy and Loper Bright, taken together, affirmatively resolve these questions: agencies may freely adjudicate matters involving public rights and their decisions are subject to review using the APA’s substantial evidence standard of review.

A. Resolution of Public Rights Claims by Agency Tribunals

Taking Jarkesy’s holding to its natural limit, it is clear that agencies may continue to adjudicate public rights claims. As Jarkesy recognized that the public rights exception attaches when Congress or the president have prerogative to act or bind individuals, such as in the tariffs realm,³⁴⁸ it follows that such cases can be resolved by the executive or legislative branches since they have the requisite power to resolve them. For example, Oil States’s holding that a patent is a public right—and therefore, that the executive branch can freely grant or revoke it—fits nicely within this framework.³⁴⁹ As the Constitution granted Congress the power to issue patents, and Congress in turn passed legislation enabling executive officers to issue and revoke patents within certain statutorily defined limits, it follows that the inter partes review process constitutes a government prerogative.³⁵⁰ Here, an Article III court need not involve itself in the inter partes review process because the executive branch has the necessary powers to determine whether to revoke a patent.

Not only may agency tribunals adjudicate claims involving public rights without violating the Constitution, but practical considerations also support this conclusion. The Social Security Administration, for example, handles over 650,000 social security benefits claims a year, meaning that it would be challenging for federal district courts to suddenly take on this caseload.³⁵¹ Additionally, transferring this caseload to Article III courts could harm litigants, since agency adjudication tends to promote consistency among decisions and leads to quicker and more affordable resolution of claims.³⁵² Fortunately, social security benefits claims properly fall under the category of public rights since they are “public benefits.”³⁵³ Therefore, for Jarkesy to stand for the proposition that agency tribunals could not resolve these types of claims would be to create an unmanageable situation in Article III courts.

B. To Review or Not to Review: Agency Tribunals’ Findings of Fact in Public Rights Cases

Since agency tribunals can adjudicate public rights cases, the logical follow-up question is whether Article III courts can hear appeals to decisions made by agency tribunals. It is clear that these courts can. After all, the Supreme Court routinely weighs in on agencies’ decisions, including those made by agency tribunals, suggesting that it considers its jurisdiction over these matters a given.³⁵⁴ Consider the Thunder Basin line of cases: in determining whether Congress intended to deprive Article III courts of jurisdiction over certain claims, courts must consider whether preclusion would foreclose all meaningful judicial review.³⁵⁵ This makes it clear that Article III courts must have some power to hear or review cases that agencies may also have an interest in resolving, especially when important constitutional issues are involved. After all, the Axon Enterprise and Free Enterprise Courts permitted original district court jurisdiction when the parties’ claims involved interpreting constitutional and statutory text to determine the validity of agencies’ structures and existences. Likewise, Thunder Basin assumed that Article III courts would have appellate jurisdiction over the coal company’s constitutional claims.³⁵⁶

Also, it would make little sense for courts to abdicate this kind of responsibility to review agency tribunals’ decisions, especially given the Court’s recent skepticism toward agency power. A more pressing question—with broader implications—is the extent to which reviewing courts should defer to agency tribunals’ findings of fact. This Section argues the APA’s substantial evidence standard of review, in light of the Court’s recent administrative law jurisprudence, should apply to claims involving public rights; otherwise, claims should be handled by Article III courts in the first instance, rendering the APA’s substantial evidence irrelevant in such cases.

Revisiting the Appellate Review Model

As some scholars point out, before the twentieth century, courts treated agencies’ findings of fact as rebuttable, prima facie evidence, even in public rights cases.³⁵⁷ This indicates that, if history accurately describes constitutional limits, Congress cannot relax the applicable standard of review. In other words, if the agency skeptics’ argument is true, then the APA’s substantial evidence standard of review may be unlawful.

However, Loper Bright likely neutralizes this argument. In Loper Bright, to determine whether the Chevron doctrine could be reconciled with the Constitution, the Court surveyed judicial treatment of questions of fact and law during the New Deal era.³⁵⁸ This implies that, at least in the Court’s mind, the New Deal era faithfully adhered to and administered the Constitution regarding judicial review of agency decisions, and so how courts reviewed agency decisions then is how courts should review such decisions today.³⁵⁹ Specifically, the Court noted that, even amid relatively significant government expansion, New Deal–era courts reviewed questions of law de novo and questions of fact as “binding on the courts, provided that there was ‘[substantial] evidence to support the findings.’ ”³⁶⁰ Of course, this describes the appellate review model, which, as many agency skeptics posited, was not the model used by courts at the time of the Constitution’s adoption. So, perhaps the Court is incorrect. Perhaps the pre–appellate review model era, rather than the New Deal era, more faithfully adhered to the Constitution. But what matters is not history but the Court’s version of the law since it is its job to say what the law is.

More precisely, the “law,” as conceived by the Court, might be best captured by Crowell. To see how this may be true, it is important to note that Justice Roberts cited the 1936 decision St. Joseph Stock Yards Co. v. United States for his proposition that New Deal–era courts did (and should) apply the substantial evidence test to questions of fact. In St. Joseph Stock Yards, the Supreme Court contemplated the issue of whether the secretary of agriculture effected an unconstitutional deprivation of property in “prescrib[ing] maximum charges for” a stock yard’s services.³⁶¹ In answering this question in the negative,³⁶² the Court distinguished ordinary fact-finding from constitutional fact-finding: whereas courts could defer to agencies’ findings of fact made pursuant to agencies’ lawfully delegated quasi-legislative power, courts had to independently assess agencies’ findings of fact when “constitutional rights . . . [were] involved.”³⁶³ This harkens back to Crowell, in which the Supreme Court concluded, four years earlier in 1932, that courts had to independently assess what facts had to exist for an agency action to be upheld as constitutional.³⁶⁴ Loper Bright’s reference to St. Joseph Stock Yards thus suggests that the appellate review model, specifically that envisioned by Crowell and applied in St. Joseph Stock Yards, offers the appropriate analysis.³⁶⁵ Although Loper Bright did not explicitly distinguish ordinary facts from jurisdictional and constitutional facts (which may bolster scholars’ claim that de novo review of constitutional and jurisdictional facts is no more), its reference to St. Joseph Stock Yards, its suggestion that New Deal–era courts applied the appropriate standards of review to agencies’ findings of fact, and its general embrace of the substantial evidence standard challenges the view expressed by some scholars and Supreme Court Justices that agencies’ findings of fact cannot be accorded deference.

Congress’s Power to Prescribe the Applicable Standard of Review

Elsewhere in the Loper Bright decision, the Court pointed out that when Congress exercised its discretionary powers, “its determinations” were “conclusive” in court proceedings.³⁶⁶ One area in which the government has discretion to act, as Jarkesy made clear, is in public rights cases. So, when Congress creates, limits, or revokes public rights, its determinations are controlling.³⁶⁷ But while discretion implies a right to do whatever one pleases, it also implies a right to constrain one’s own actions, delegate this power to constrain to others, and determine the extent to which oneself or one’s agent will be constrained.

Loper Bright took for granted that Congress can delegate its discretionary powers to agencies.³⁶⁸ So, when Congress delegates its discretionary powers to agencies, it can also decide how much agencies will be constrained.³⁶⁹

Setting the standard of judicial review is one way Congress can constrain agencies’ actions. To understand how this works, suppose Congress wants to create a social assistance program and passes a law that establishes an agency and intra-agency tribunal to regulate these benefits. As social benefits would fall under the public rights doctrine, the political branches would have discretion to police them. Therefore, Congress could instruct courts to review agency tribunals’ findings of fact under the substantial evidence test since it has the power to constrain itself, via the agency’s actions. Here, a reviewing court merely “defers to the law,” to use Hamburger’s words (and the idea espoused by Justice Breyer and Justice Scalia in defending Chevron deference, for that matter), when it analyzes the agency’s findings of fact for substantial evidence because that is what the statute tells it to do.³⁷⁰

Of course, this is exactly what the APA does: it constrains Congress’s discretionary authority. Indeed, as Loper Bright explained, under the APA, courts decide “all relevant questions of law, interpret[ations of] constitutional and statutory provisions, and determin[ations of] the meaning or applicability of the terms of an agency action.”³⁷¹ If Congress wanted agencies to have more or less authority to declare what the facts were in public rights cases with little interference from reviewing courts, it could. Apparently, the APA’s drafters opted to give agencies moderate discretion to find facts by holding that reviewing courts were to uphold such facts if supported by substantial evidence.

That the substantial evidence standard has its roots in judicial review of jury findings of fact is of no consequence here given that Congress has wide discretion to prescribe the applicable standard of review when it has discretionary power to act, such as in public rights cases. Thus, the substantial evidence standard of review can apply in public rights cases because Congress, through agencies, may regulate public rights and tell courts that the law is to review its findings of fact made pursuant to formal agency adjudications for substantial evidence. This remains true no matter how impractical this standard of review may be in the eyes of agency critics.³⁷²

On the other hand, if a claim implicates the Seventh Amendment and involves a private right, an agency has no power to decide it. This means that the APA’s substantial evidence standard of review would not apply in Seventh Amendment, private rights cases since appellate review would necessarily follow resolution by an Article III court, the only body capable of resolving such matters. In other words, the APA’s substantial evidence standard is triggered by review of an agency’s formal adjudication, but an agency cannot even formally adjudicate cases implicating the Seventh Amendment and private rights in the first place.

As for when the Seventh Amendment is not implicated but one’s private rights are involved, the current Supreme Court does not definitively answer the constitutionality issue. On one hand, Loper Bright could be interpreted to authorize review of agencies’ findings of fact for substantial evidence because (1) Loper Bright assumed St. Joseph Stock Yards correctly states the law, (2) St. Joseph Stock Yards relied on Crowell’s distinction of ordinary from jurisdictional and constitutional fact-finding, and (3) Crowell itself did not implicate the Seventh Amendment as it was an admiralty case and permitted agency adjudication of private rights.³⁷³ Other support for this position comes from Justice Breyer’s concurrence in Oil States: in that case, Justice Breyer noted that precedent, such as Stern v. Marshall, “should not be read to say that matters involving private rights may never be adjudicated other than by Article III courts.”³⁷⁴ But, on the other hand, the majority in Oil States pointed out that, “[w]hen determining whether a proceeding involves an exercise of Article III judicial power, this Court’s precedents have distinguished between ‘public rights’ and ‘private rights,’ ” which could be read to either say the existence of private rights (1) is dispositive in determining whether agencies may adjudicate a matter or (2) merely a factor to consider.³⁷⁵ Considering that Oil States permitted agency adjudication of patent cancellations because this involved public rights, (1) seems to be the more plausible reading. While this Note does not purport to answer this question in particular, it is clear that, at least in public rights cases, the APA’s substantial evidence standard of review is constitutional.

CONCLUSION

Judicial deference to agencies’ findings of law has been on the retreat since Loper Bright sounded the death knell on Chevron deference. However, the Supreme Court has not exhibited a similar level of distrust toward agencies’ findings of fact. Indeed, since the early days of the APA, the Court has maintained that courts are to uphold agencies’ findings of fact so long “as a reasonable mind might accept [these findings] as adequate to support a conclusion.”³⁷⁶ Yet, an important constitutional issue arises when courts defer to agencies’ findings of fact when both the Seventh Amendment and private rights are implicated. In these cases, agencies have no authority to find facts because a jury must find such facts. Meanwhile, agencies may freely adjudicate public rights cases.

Therefore, when an agency adjudicates claims implicating individuals’ public rights, its findings of fact are entitled to some judicial deference because Congress has somewhat curtailed its discretionary powers through requiring reviewing courts, applying the APA, to analyze these findings according to the substantial evidence test. To the extent that Jarkesy nullified the APA’s substantial evidence standard, it did so when agencies adjudicated matters implicating the Seventh Amendment and private rights. This is because there can be no lawful agency proceeding to review. So, while the APA’s substantial evidence standard of review raises important constitutional questions, any concerns are probably limited to application of the standard in Seventh Amendment, private rights cases. The substantial evidence standard may also raise concerns in non-Seventh Amendment, private rights cases too. Otherwise, the substantial evidence standard of review is constitutional.

99 S. Cal. L. Rev. 725

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Lindsey Kate Miller*

* Executive Senior Editor, Southern California Law Review, Volume 99; J.D. Candidate 2026, University of Southern California Gould School of Law; B.A. Political Science 2021, University of California, Los Angeles. Many thanks to my Note Advisor, Professor Jonathan Barnett, for his thoughtful suggestions and encouragement throughout the process. I am also grateful to the members of the Southern California Law Review for their helpful comments and care in preparing this Note for publication. To my family, thank you for your love and support, and for always believing in me.

Introduction

I. The Ties Between Creativity and Crime

A. General Similarities

B. The Overlap in Young People

II. The Relevance of the Developmental Framework

A. Developmental Basis for Creativity and Crime

B. Young People’s Developmental Need for Creativity

C. The Developmental Framework

III. The Prosecution and Punishment of Crime

The Significance of Discretion and Bias

Associations with Criminality or Creativity

Labeling Acts As Creative or Criminal

New Laws and Policies

B. Punishing Crime

IV. Creativity and Crime in Schools

A. Culture of Criminalization

B. Creating a Culture of Creativity

Conclusion

99 S. Cal. L. Rev. 499

Introduction

I. Child Protection In The United States

A. Evolution of Federal Child Protection Laws

B. Early Court Decisions Regulating Parental Conduct

II. Children’s Privacy In The Age of Social Media

A. Sharenting and Beyond

B. How the U.S. Tries (and Fails) to Protect Children’s Privacy Online

C. International Approaches to Protecting Children’s Online Privacy

III. A New Framework for Regulating Parental Online Conduct

A. Evolving Standards of Online Conduct to Regulate Abusive Sharenting

B. A Path Forward

Family Preservation

Identifying Uniform Standards for What Constitutes Sharenting and What Constitutes Abusive Forms of Oversharenting

Train and Equip Child Welfare Officials

Update Child Welfare Laws

Conclusion

99 S. Cal. L. Rev. 559

Introduction

I. Robotaxis Today

A. Technologies

B. Economics

Market Structure

Cost Structure

Deployment

C. Potential for Wider Adoption

D. Regulation

Safety Regulation

Service Regulation

II. Curbing Externalities

A. Externalities and Mode Choice

B. Pollution

C. Wear-and-Tear

D. Congestion

E. Privacy

III. Protecting Riders

A. Promoting Competition

Competition and Safety

Open Entry

Lock-in Contracts

B. Preserving Autonomy

Transparent and Rider-Neutral Fares

Emergency Planning

IV. Redesigning Mobility

A. Liberating Land

B. Refocusing Transit

C. Expanding Access

People with Low Incomes

People with Disabilities

Sparsely Populated Areas

Conclusion

99 S. Cal. L. Rev. 603

INTRODUCTION

I. ANTI-GENDER IDEOLOGY AND THE NEW SCOPE OF EXECUTIVE POWER

A. The International Growth of “Anti-Gender Ideology”

B. Trans Rights at the State Level

C. The Executive Branch and Federal Intervention

II. THE LIMITS—AND RISKS—OF JUDICIAL INTERVENTION

A. The Limits of Existing Federal Protections

Medicaid

The Affordable Care Act

B. The Shifting Borders of Sex Discrimination Law: Bostock and the ACA