Vol. 98, No. 4 Archives – Southern California Law Review

Fintech and Techno-Solutionism

July 2025July 2025Hilary J. Allen*

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

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

Introduction

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

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

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

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

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

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

I. Techno-Solutionism

A. What Is Techno-Solutionism?

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

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

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

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

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

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

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

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

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

B. Techno-Solutionism and Venture Capital

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

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

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

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

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

C. Techno-Solutionism and the Law

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

How Law Perpetuates Techno-Solutionism

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

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

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

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

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

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

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

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

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

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

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

How Law Can Be Stymied by Techno-Solutionism

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

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

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

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

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

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

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

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

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

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

II. Fintech and Techno-Solutionism

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

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

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

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

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

A. Financial Inclusion

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

B. Efficiency

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

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

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

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

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

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

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

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

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

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

C. Competition

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

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

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

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

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

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

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

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

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

D. Security

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

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

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

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

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

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

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

III. Financial Regulation and Techno-Solutionism

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

A. Quick Primer on Financial Regulation

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

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

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

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

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

B. Financial Regulation and Techno-Solutionism

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

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

Legislative Proposals

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

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

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

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

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

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

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

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

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

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

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

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

Administrative Action

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

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

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

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

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

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

i. Rulemaking and Guidance

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

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

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

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

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

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

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

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

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

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

ii. Monitoring

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

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

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

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

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

iii. Enforcement

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

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

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

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

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

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

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

Looking Forward: Financial Regulation and AI

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

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

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

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

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

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

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

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

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

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

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

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

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

IV. A Possible Antidote to Techno-Solutionism

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

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

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

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

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

Conclusion

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

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

98 S. Cal. L. Rev. 761

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Hilary J. Allen*

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

Fair Use and Fair Price

July 2025July 2025Roy Baharad* & Gideon Parchomovsky†

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

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

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

INTRODUCTION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I. Fair Use: Law and Theory

A. The Fair Use Doctrine

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

B. Theoretical Justifications of the Fair Use Doctrine

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

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

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

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

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

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

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

II. Fair Use as Licensing Leverage

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

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

A. The Theory

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

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

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

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

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

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

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

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

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

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

B. The Model

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

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

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

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

Figure 1. The Effect of Fair Use on Copyright Pricing

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

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

C. Illustrations

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

Oracle and the Future of Licensing in Technologies

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

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

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

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

Documentary Filmmakers

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

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

Parodies and Satires

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

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

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

Warhol and the Future of Transformativeness

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

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

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

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

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

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

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

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

III. Normative Implications

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

A. Countervailing Allocative Inefficiencies

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

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

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

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

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

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

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

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

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

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

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

B. Redistributing Bargaining Surplus

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

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

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

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

C. The Role of Damage Awards

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

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

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

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

D. The Latent Virtue of Ambiguity

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

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

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

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

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

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

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

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

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

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

Conclusion

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

98 S. Cal. L. Rev. 761

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Roy Baharad *

* Doctoral Candidate, University of Chicago Law School.

Gideon Parchomovsky†

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

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

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

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

Introduction

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

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

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

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

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

Figure 1. Swiss Cheese Model for Reducing Harassment

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

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

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

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

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

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

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

I. The Persistent Nature of Workplace Harassment

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

A. The Historical Origins of Harassment

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

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

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

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

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

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

B. The Current Landscape of Workplace Harassment

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

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

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

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

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

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

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

C. Harassment as a Workplace Hazard

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

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

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

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

II. Legal Constraints Fail to Provide Accountability

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

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

A. The Individuation of Harassment Evidence

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

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

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

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

B. Mandatory Arbitration Provisions

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

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

C. Coverage Gaps Constrain Workers’ Access to Courts

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

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

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

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

D. Retaliation Law and Its Effect on Underreporting

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

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

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

E. Rigid Administrative Exhaustion Requirements Block Access to Justice

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

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

F. Severe or Pervasive Requirement Excludes Strong Claims

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

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

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

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

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

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

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

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

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

H. The Standard for Vicarious Liability

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

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

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

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

I. Damage Caps Fail to Remedy Harms

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

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

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

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

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

J. Implied Hierarchy of Harassment Claims

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

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

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

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

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

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

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

A. Methodology

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

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

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

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

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

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

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

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

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

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

B. Volume of Gender Equity Legislation Post #MeToo

Federal Reforms

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

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

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

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

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

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

State Reforms

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

i. General Trends

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

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

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

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

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

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

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

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

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

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

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

C. Political Trends in Gender Equity Legislation Post #MeToo

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

Political Party

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

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

a. Introduced bills

b. Passed bills

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

Representation of Women Lawmakers

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

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

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

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

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

D. Topical Analysis of Gender Equity Legislation Post #MeToo

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

IV. Discussion & Implications

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

A. Did States Fill Any Gaps?

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

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

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

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

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

B. Legal Gaps in Need of Greater Attention

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

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

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

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

Greater Focus on Intersectional Harms

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

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

Navigating an Employer-Friendly Judiciary

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

Dealing with Retaliation is Required for Reforms to Work

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

Conclusion

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

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

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

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

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

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

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

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

98 S. Cal. L. Rev. 761

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Jamillah Bowman Williams*

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

Elizabeth C. Tippett†

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

Anu Ramdin‡

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

Familial DNA and Due Process for Innocents

July 2025July 2025Erin Sheley*

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

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

Introduction

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

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

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

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

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

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

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

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

I. The Developing Practice of Forensic DNA

A. DNA Science

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

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

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

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

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

B. DNA and Exonerations

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

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

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

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

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

C. Familial DNA

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

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

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

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

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

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

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

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

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

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

II. The Privacy Argument for Restricting Familial DNA

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

A. The Constitutional Dimension

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

B. DNA and the Fourth Amendment

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

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

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

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

C. The Case for Genetic Privacy post-Carpenter

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

1. The Scholarly Debate

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

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

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

2. Legislative Responses

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

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

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

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

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

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

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

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

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

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

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

III. The Due Process Rights of the Innocent Suspect

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

A. The Compulsory Process Clause

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

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

The Subpoena Power

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

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

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

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

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

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

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

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

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

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

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

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

Constitutional Limitations

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

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

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

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

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

Conclusions on Familial DNA and Compulsory Process

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

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

B. The Due Process Right to Exculpatory Evidence

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

1. Brady and DNA

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

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

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

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

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

2. Conclusions on Brady and Familial DNA

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

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

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

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

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

The Lack of Constitutional Innocence Claim

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

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

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

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

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

State Post-Conviction Statutes

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

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

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

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

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

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

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

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

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

Post-Conviction Statutes and Familial DNA

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

Conclusion: Adjudicating Due Process in Conflict

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

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

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

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

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

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

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

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

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

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

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

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

98 S. Cal. L. Rev. 761

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Erin Sheley*

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

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

July 2025July 2025Jacob M. Karlin*

INTRODUCTION

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

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

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

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

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

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

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

I. BACKGROUND

A.Executing Bilateral Extradition Treaties

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

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

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

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

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

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

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

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

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

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

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

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

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

C.Extradition Treaty Interpretation in the United States

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

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

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

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

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

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

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

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

D.Due Process in the Extradition Process

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

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

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

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

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

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

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

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

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

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

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

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

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

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

II. INTERPRETING THE “CHARGING DOCUMENT”

A.Overview of the Circuit Split

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

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

B.Manrique v. Kolc

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

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

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

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

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

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

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

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

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

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

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

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

C.Vitkus v. Blinken

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

III. INTERNATIONAL RELATIONS AND DUE PROCESS

A.Due Process and Treaty Interpretation

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

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

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

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

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

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

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

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

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

B.Relevant Background

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

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

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

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

CONCLUSION

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

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

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

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

98 S. Cal. L. Rev. 761

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Jacob M. Karlin*

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

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

July 2025July 2025Charlie Murphy*

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

Introduction

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

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

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

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

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

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

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

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

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

I.A Historic Influx of Unaccompanied Children

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

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

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

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

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

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

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

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

A.The Flores Settlement Agreement of 1997

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

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

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

B.The Homeland Security Act of 2002

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

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

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

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

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

D.ORR’s Role in Child Custody and Placement

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

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

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

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

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

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

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

III. Labor Law’s Role in protecting Unaccompanied Children

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

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

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

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

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

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

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

B. Varying State Child Labor Laws

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

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

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

C. Anti-Trafficking Laws Protecting Unaccompanied Children

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

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

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

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

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

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

1.Proper Vetting of Sponsors Versus Speed of Release

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

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

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

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

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

2.Keeping Track of Migrant Children Paroled into Sponsor Homes

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

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

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

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

3.Implementing Reporting Requirements for Sponsors

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

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

4.Enforcement Mechanism Needed

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

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

B. Inadequacies in FLSA Penalties and DOL Enforcement Capabilities

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

C. Summary of Solutions

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

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

CONCLUSION

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

In making these recommendations, this Note examined a series of overlapping statutes and policies that are either structurally unsound or undermined by congressional inaction and underfunding. The TVPRA’s text and ORR’s approach to child placement are too relaxed and put unaccompanied children at an increased risk of exploitation. The TVPRA mandates government action only while unaccompanied minors are in ORR custody and relieves the government of any responsibility once children are placed into sponsor homes. Moreover, ORR does not have the resources or infrastructure available to effectively monitor every child that it releases from its custody. Similarly, while the basic structure of the FLSA is sound, the statute is undermined by relatively weak penalties and provides no avenue for child victims to seek compensation for the harm they suffer. Moreover, although Congress has signaled that it wants child labor protections to be enforced, it has underfunded the agency responsible for upholding child labor laws for years, leaving DOL understaffed and unable to meet its critical mission of holding irresponsible employers accountable and ensuring a safe workplace for children and adults alike.

Protecting unaccompanied children from labor exploitation cannot be accomplished by addressing only one set of laws or a single federal agency. A whole-of-government approach is needed whereby the legislative branch addresses gaps in current law and the executive branch uses all of the levers at its disposal to combat the issue. Legal adjustments in both immigration law and labor law and congressional funding are needed to empower ORR and DOL to fulfill their missions, and interagency agreements should be entered into and maintained in order to safeguard unaccompanied minors through their entire journey with the UAC Bureau. In the immigration arena, Congress should amend the TVPRA to require ORR to monitor children who are released from government custody until their immigration matters are settled or they age out of the UAC Bureau, and ORR must be given the authority to reclaim custody and find new sponsor homes for children who are being abused or exploited by their sponsors. ORR should also find creative ways to monitor children in lieu of increased federal funding, such as entering into an information-sharing agreement with DOE. Finally, sponsors and unaccompanied children should be required to check in with ORR as a means to demonstrate that the child is being properly cared for.

Once children have been released from ORR custody, DOL is uniquely positioned to safeguard them from employer exploitation. But DOL needs to be properly funded by Congress to be able to adequately monitor and respond to reports of illegal child labor. Understaffing has hindered DOL’s ability to investigate illegal child labor, which puts unaccompanied minors at a greater risk of harm in dangerous workplaces. While an information-sharing agreement with ORR to identify potential exploitation or trafficking amongst unaccompanied minors is a good start, DOL needs help from Congress regarding enforcement. Congress should first update the FLSA to ensure that financial penalties are high enough to act as a proper deterrent against illegal child labor. Congress should also consider providing victims of illegal child labor with a private cause of action to seek individual justice, so long as proper protections exist to prevent frivolous litigation against responsible employers.

Unaccompanied children are a particularly vulnerable group, made even more so by the shifting political winds in the United States. With the current gaps in federal law and new leadership in the executive branch every four years, unaccompanied minors are falling through the cracks and ending up in prohibited workplaces. No single agency or statutory scheme is capable of protecting each child through every step of their immigration journey. But through a collaborative and whole-of-government approach, the United States can address the shortcomings in federal immigration and labor law to properly mitigate the risk that unaccompanied children face exploitation. If Congress truly cares about children being exploited in the workplace, it should not hesitate to act by amending the TVPRA and FLSA and properly funding ORR and DOL. Congressional critiques of these agencies will not fix the structural problems hampering their performances; only congressional action can do that. The federal government has properly committed itself to protecting unaccompanied children, but it is long past time that it lives up to that commitment.

98 S. Cal. L. Rev. 761

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Charlie Murphy*

* Senior Editor, Southern California Law Review, Volume 98; J.D. Candidate 2025, University of Southern California Gould School of Law; B.A. 2011, Emerson College. Thank you to Jeremy Gartland, Isabelle Yuan, Michelle Solarczyk, and the staff of the Southern California Law Review for their expert edits and wonderful feedback, and to Professor Rebecca Brown for her guidance and tutelage.

I especially want to thank Professor Henna Pithia and my International Human Rights Clinic classmates. Advocating for the rights of vulnerable and politically unpopular groups requires bravery and sacrifice, and the passion that Professor Pithia and my IHRC family brought to their work inspired me in writing this Note and left me in awe.

Criminalization: An Exceptionally American Response to Homelessness

July 2025July 2025Jacob Schwessinger*

This Note analyzes the recent trend of criminalizing homelessness in the United States. The first half discusses homelessness through the lens of American exceptionalism as a comparative tool. Comparing America to its international peers helps us better understand why America’s response to homelessness has become increasingly punitive. In doing so, the Note makes a novel contribution to American exceptionalism literature in applying the concept to homelessness. Specifically, it shows that while American homelessness rates are not unusually high, American shelter rates are unusually low relative to other western democracies. The Note shows this by combining national homelessness reports into a single dataset and document. The second half of the Note discusses current constitutional doctrine relating to homelessness, focusing on City of Grants Pass v. Johnson. This section uses the first half’s analysis to show why, contrary to the Supreme Court’s decision, the Ninth Circuit’s ruling was, at its core, correct on a legal and sociological level in applying status crimes doctrine to homelessness. In doing so, the Note builds on others’ defenses of the Ninth Circuit’s ruling by both adding to those legal arguments and bolstering them with a sociological grounding, offering a new way of thinking about status crimes in general and homelessness in particular. The Note mounts a defense not only of now-outdated homelessness constitutional doctrine, but also of a shift in American political culture that recognizes homelessness as a product of social circumstances rather than individual failure. Such a change is a necessary prerequisite for curbing, on legal and political levels, America’s intensifying trend of criminalizing homelessness, the first step in bringing America in line with its peers and actually solving homelessness.

Introduction

In 2010, Debra Blake, a resident of Grants Pass, Oregon, lost her job.¹ Already in a precarious financial position, she could not afford to remain in her home and was forced out.² For the next ten years, she had no choice but to spend her nights in a variety of locations, either in temporary shelters or on the streets of Grants Pass.³ This already devastating and tumultuous experience was made worse beginning in 2013, when Grants Pass began issuing civil citations to people sleeping on public property.⁴ Between 2013 and 2019, Blake accumulated over $5,000 in fines.⁵ If she did not pay those fines and was caught by the police on city property, she would be subject to criminal prosecution for trespass.⁶ With nowhere else to go, Blake was on the brink of just such a prosecution. Before any prosecution could take place, however, Debra Blake died. Little is publicly known about her death. She was sixty-two.⁷

Blake’s story is tragic, but it is far from unique in the United States. As of 2024,⁸ over 770,000 people were living without a home or apartment in America.⁹ In response, cities across the country, including Grants Pass, have passed laws and regulations increasingly hostile to their homeless residents.¹⁰ Before passing away, Blake filed a class action lawsuit with other homeless residents against Grants Pass.¹¹ She alleged that the practice of fining people for sleeping on public property violated the Eighth Amendment’s ban on status crimes—crimes which criminalize people solely for their states of being rather than their actions.¹² Although she did not live to see the result, the Ninth Circuit agreed with her claim that the city’s practice was unconstitutional.¹³ Grants Pass, however, appealed the case to the Supreme Court, which in 2024 ruled in favor of the city.¹⁴ The ruling solidified and gave constitutional cover to the nationwide trend of municipalities criminalizing homelessness.

How did we get here? What has led to so many towns and cities in the United States to criminalize homelessness? Is America unique in this regard? How should the Court have ruled? This Note explores these questions through the concept of American exceptionalism and American history to better understand and justify legal doctrine and arguments surrounding the criminalization of homelessness.

The first half of this Note, Part I, explains American homelessness and compares it to America’s international peers. Section I.A outlines its methodology showing that an approach to legal scholarship that puts black-letter law in social context is imperative for understanding law. Section I.B introduces newly synthesized data on homelessness rates and shelter rates among western democracies where data is available, showing that while America’s homelessness rate is not uniquely high, its rate of unsheltered homeless people is. The subsequent parts of this Section explain these findings. Section I.C examines government spending and America’s comparatively weak social safety net writ large. Section I.D outlines American public opinion and ideology, unveiling a culture of individualism over collectivism using a variety of political documents and public opinion polling. Section I.E discusses the role of race and homelessness, showing how America’s history of racial oppression enables and exacerbates the problem of homelessness. Section I.F explains America’s turn towards criminalization as a “solution” to homelessness, embedding it in larger trends of American history and ideology.

The second half of this Note, Part II, outlines and defends current Ninth Circuit legal doctrine on homelessness. Section II.A gives an outline of current law, showing how the Ninth Circuit used the Eighth Amendment’s status crime doctrine to bar cities from utilizing what is effectively a loophole in constitutional law. Section II.B examines the arguments made in City of Grants Pass v. Johnson. Section II.C analyzes the Supreme Court’s eventual decision in the case. Section II.D defends the Ninths Circuit’s ruling against the Court’s decision. It takes the stance that the Ninth Circuit’s understanding and application of status crime doctrine fits well within the more collectivist understanding of reality as comprehended by those in other western democracies. Finally, Section II.E calls for a change in popular American ideology that is likely to motivate the Court’s decision and current municipal law. Only a shift away from an individualist and towards a collectivist understanding of society can fuel the political will to change homelessness law.

Homelessness Compared and Explained

This Part uses the lens of American exceptionalism to elucidate homelessness data and policy in the United States, comparing it to other western democracies in order to better understand America’s turn to criminalization as a “solution” to homelessness.

A.A Preliminary Note on Method

This Note takes a relatively unique approach to the study of homelessness law and doctrine. That is, it does not take law as an isolated field that can (or should) be studied on its own, or with a mere dash of policy analysis thrown in at the end. Rather, it sees law as embedded in and determined by social context. Such a strategy, according to some, has been described as “the single most revolutionary development in modern legal thought.”¹⁵ This is not to say that all legal research must consider law this way. Rather, it is to say that doing so is useful and worthwhile, one of many forms that legal analysis and thought can take. Thus, while not all analysis in this Note is directly legal, the consequences of the ideology and governmental policies outlined in this Note are directly legal, manifesting in municipal decisions to criminalize homelessness and court decisions responding thereto. In addition to the strictly legal arguments made below, another contribution of this Note is an analysis of what motivates recent American legal trends. Such an analysis is imperative not only for understanding and evaluating current trends, but also for analyzing the root causes and offering solutions in domains that extend outside of law yet influence law, such as notions about what has to change in popular American political ideology. When legal arguments go hand-in-hand with political arguments, since law is always bound up with politics,¹⁶ they become all the more potent. As such, this Note takes an approach that is interdisciplinary and necessarily so.

The first half of this Note uses the lens of American exceptionalism to help explain homelessness. There are many approaches to the understanding and use of the concept “American exceptionalism.”¹⁷ This Note seeks to add to the body of literature exploring American exceptionalism by examining a previously understudied topic: homelessness and homelessness policy. The Note deploys a method close to that developed by Charles Lockhart in The Roots of American Exceptionalism. That is, it utilizes a schema that draws on historical, institutional, and cultural variables to explain both the nuances of America’s homelessness problem as well as America’s political reaction to homelessness.¹⁸ In doing so, this Note shows certain aspects in which America is exceptional with regard to its stance towards homelessness, which is reflected both in its policy and ideological belief system.

Moreover, placing America in a comparative light helps explain why America’s response has been increasingly punitive. By analyzing recent American history, one can see how criminalizing homelessness fits within larger cultural and structural trends. A comparative understanding of American societal disposition towards economic opportunity in general and homelessness in particular is imperative for understanding why America is making the choice to criminalize homeless people. These trends explain why the Supreme Court chose to reverse the Ninth Circuit’s ruling in Johnson.¹⁹ But first, these underlying trends must be identified, and they are examined below.

B. Homelessness Compared

This Section conducts a brief, international comparison of homelessness rates to see if and how America is unique with regard to its treatment of homeless people. Delving into a data collection that is the first of its kind, this Section shows that while the rate of homelessness in America is not exceptional, the percentage of homeless Americans who are unsheltered is very high relative to other western democracies.

Numerous reasons might lead one to suspect that America has an exceptionally high homelessness rate compared to other western democracies.²⁰ For instance, the United States, even after taxes and monetary transfers, has a very high level of income inequality relative to other western democracies.²¹ Its “Gini Coefficient,” which measures income inequality, ranks higher than Australia, New Zealand, Canada, and most European Union countries.²² Moreover, since the 1980s, the share of income going to the top 10% of earners has consistently increased on an annual basis.²³ While the United States used to have a more egalitarian distribution of income in the early 20th century, this is no longer the case today.²⁴

However, a closer examination of the data²⁵ on homelessness rates from other western democracies reveals that, in this realm, America is unexceptional:

Figure 1. Percentage of Population Homeless by Country

Note: Data assembled by the author. See Appendix infra for methods.

Figure 1 shows the rate of people experiencing homelessness by the percentage of the population of the country in which they reside. Essentially, it is the homelessness rate of each country. As the chart shows, the homelessness rate in the United States is not particularly high compared to other western democracies. Among seventeen other countries where data is available, the United States ranks as having the seventh highest homelessness rate. Its rate almost exactly matches the overall homelessness rate for the European Union.²⁶

But homelessness rates alone do not tell the whole story. Delving deeper into the data, when one examines the percentage of homeless people spending nights unsheltered, one sees a very different picture:

Figure 2. Percentage of Homeless Population Unsheltered by Country

Note: Data assembled by the author. See Appendix infra for methods.

Not all countries included in Figure 1 have data available for the rate of unsheltered homeless people in the studies used. Still, thirteen countries do. Figure 2 shows that the percentage of unsheltered homeless people is far higher in the United States than it is in most other western democracies. Its rate of unsheltered homeless people is 33% higher than the next closest country, New Zealand. It is approximately double the EU average. Of the countries examined, only Czechia has a higher rate. Thus, while the United States does not differ in kind from other western democracies in this respect, it does significantly differ in degree.

As such, although there is not a particularly large number of people experiencing homelessness in the United States relative to other western democracies, the percentage of these people that are unsheltered in the United States is relatively high. This difference is important for both analyzing the problem itself and for understanding how America has reacted to homelessness. If America had a unique level of homelessness, one would seek to explain this phenomenon by examining the root causes of homelessness. However, given that America has an unusually high number of people living outdoors or on the streets, this means that shelter availability is comparatively low in the United States relative to other western democracies.

This specific intervention is important. Homelessness has been hitherto neglected in the debate around American exceptionalism. This is likely because, at first blush as shown above, America does not have an exceptionally high rate of homelessness. Still, there is a popular perception that America does have a much higher homelessness rate than other western democracies.²⁷ The major difference between America and its peers is the rate of shelter availability. Because people (especially in the United States) do not see the level of homelessness in Europe, they think it does not exist.

Therefore, to understand why America is exceptional in the realm of homelessness, the subsequent four Sections of this Note seek to understand America’s response to homelessness rather than homelessness’s causes.

C. The Social Safety Net

The first factor that helps explain why America lacks the homeless shelters that other western democracies have is the relatively weak social safety net its state, local, and federal governments maintain. Seen in this light, America’s lack of homeless shelters is not an isolated fact that sets it apart from other western democracies. Rather, it is part of a larger trend concerning America’s relatively weak social safety net.

In general, American total government expenditure is less, as a proportion of its total GDP, than most other western democracies. In 2019, for example, the U.S. government’s expenditure as a percentage of GDP was 36%, while France’s was 55%, Sweden’s was 48%, the United Kingdom’s was 38%, and New Zealand’s was 39%.²⁸ Although these are only a few examples, there is a general historical trend of the United States’ government being outspent by other western democracies.²⁹ This is in spite of the fact that America wildly outspends those same countries on maintaining its military, accounting for 39% of the world’s military expenditure.³⁰

This difference in government spending is reflected in the provision of a variety of social services. For example, many other western democracies own and operate their railroad and airline systems.³¹ In America, however, the federal government has not made a similar commitment. The same can be said for the operation of utilities. While other western democracies often directly operate means of communication (like telephone lines) or energy distribution (like gas and electricity), the United States has largely left the operation of these basic necessities to the private sector.³² There is thus a more minimal role of government in the coordination of economic activity in America compared to other western democracies.

America’s social safety net is similarly weak. In a wide variety of areas, from mandated maternity leave to child day care to low-income housing, the U.S. government³³ provides comparatively less to its residents than most other western democracies.³⁴ A paradigmatic example of this trend is healthcare. The United States is the only western democracy to not ensure medical insurance coverage for virtually all of its residents.³⁵ This is partially due to the fact that the United States achieves its 90% health care coverage through a patchwork system of private insurers and government programs like Medicare and Medicaid.³⁶ Moreover, the story goes further than simply who is providing the care. The United States has largely left other key elements of the healthcare system to the private sector, such as price-setting. This has also contributed to the United States’ relatively high cost of healthcare.³⁷

In sum, America has a relatively weak social safety net compared to other western democracies. This is intertwined with the fact that the U.S. Constitution does not announce rights in a positive sense. Rather, it accords negative rights. The Constitution’s Bill of Rights consists of private activities that the government will be largely restrained from infringing upon, like the right to freedom of speech, the right to bear arms, and the right against cruel and unusual punishment.³⁸ Commonplace in other western democracies, however, are positive rights. These are rights that promise positive provisions that the government accords its citizens, such as food, shelter, and healthcare.³⁹ While not all of these guarantees are necessarily lived up to by those governments, particularly those of poorer nations, the presence of de jure positive rights nonetheless signals a difference between America and its peers.

Thus, on a structural level, the United States’ relative lack of shelter for people experiencing homelessness fits well in this larger picture. America’s government spending in general and social safety net in particular are far weaker than other western democracies. Even though America’s economic and housing systems have not produced more homeless people, a relative lack of spending in social programs can begin to shed light on why American governments—federal, state, and local—have not been willing to build more shelters for those experiencing homelessness.

But more explanation is needed. America is, after all, a democracy.⁴⁰ Why have Americans refrained from voting to expand their welfare state? Why are they not voting to expand government funding to include the construction of homeless shelters? What explains the gap between America and its peers?

D. Public Opinion and Ideology

To explain America’s relatively weak social safety net in general and its refusal to adequately shelter homeless people in particular, a deeper dive into American ideology and voter belief is necessary.⁴¹ This Section does exactly that, using a variety of public opinion polling as well as the documents of elected officials to show how ideological beliefs around individualism inform American social policy and homelessness policy.

To engage popular ideology, public opinion polling is a useful place to start. Karabel and Laurison summarized a number of useful studies comparing American public opinion to public opinion in a variety of other countries.⁴² Their analysis was enlightening. America was an outlier relative to other western democracies in a variety of ways. Americans were more likely to value freedom over equality than those in other western democracies surveyed.⁴³ More specifically, Americans were more likely to believe that the freedom to pursue life’s goals outweighed the importance of the state guaranteeing that no one is in need.⁴⁴ While the percentage of people favoring this statement was roughly 25% in France and 31% in Germany, it was over 60% in the United States.⁴⁵ Additionally, almost 50% of Americans in one survey thought that “it should not be the responsibility of government to reduce income differences.”⁴⁶ Amongst the other countries included in the survey, only New Zealand scored higher, and did so only by a small margin. The analogous proportion in most other western democracies was far lower. In another poll, the percentage of Americans surveyed who thought that private ownership of business is preferable to government ownership of business was over 60%, higher than any other western democracy surveyed.⁴⁷ The analogous figures for Germany, Australia, and Canada were roughly 38%, 39%, and 52%. Finally, most on the nose, Americans agreed with the statement “it should not be the responsibility of government to provide for the unemployed” at a rate of roughly 49%.⁴⁸ This rate was higher than every other country surveyed, except for New Zealand.

From these surveys, we can conclude that Americans not only value personal freedom more than economic equality at a higher rate than other western democracies, but also that Americans are less willing to endorse government action to assist people in dire economic straits.

Still, the differences run deeper than mere social values and government actions. Americans surveyed also differed in their explanations for the root causes of social realities themselves. For instance, one question asked whether “people are poor because of laziness and lack of willpower” or “poor because of an unfair society.” In America, 62% agreed with the former, the highest proportion of any western democracy surveyed.⁴⁹ While 50% of both New Zealanders and Australians agreed with that statement, the analogous rate for Finland and Germany was 23% and 17%, respectively.⁵⁰ Relatedly, Americans were more likely to believe that their society is meritocratic. For instance, 63% of Americans believed that success is determined by hard work rather than luck and connections, scoring higher than all other western democracies except for Finland.⁵¹ Finally, the United States had the highest rate of disagreement with the statement “success in life is pretty much determined by forces outside our control,” relative to other western democracies.⁵² Almost 70% of Americans disagreed, while most other countries surveyed had disagreement rates of 50% or less.⁵³

Thus, majorities of Americans tend to see poverty not as a social failure, but as a personal one. Moreover, Americans tend to hold these views at much higher rates than most if not all other western democracies.

These attitudes are not only passively held by Americans, but also actively practiced by their elected officials. One can see these ideas made manifest in Paul Ryan’s A Roadmap for America’s Future.⁵⁴ In the proposal, the former Speaker of the House of Representatives meticulously lays out not only policy proposals, but also philosophical and historical rationales for those proposals. These policies largely consist of scaling back levels of spending on the federal government’s social safety net. To justify these rollbacks, he appeals to many of the values outlined above, such as personal freedom and individual responsibility. He justifies his favor of markets and individual freedom by stating that in market-based economies, like America’s, “no individual or family is bound to their circumstances: they can advance, they can improve their conditions, through their own efforts.”⁵⁵

Ryan sees this “freedom” as being threatened by government intrusion into the economy through the expansion of the social safety net. Writing of efforts to expand welfare programs, he writes that “government increasingly dictates how Americans live their lives . . . [b]ut dependency drains individual character, which in turn weakens American society.”⁵⁶ Thus, although Ryan is a partisan actor arguing for particular policy solutions, here he is appealing to broader sentiments that resonate with large majorities of the American public.⁵⁷ The economic failures of individuals are not seen as rooted in structural economic forces. Rather, they are seen as failures of individuals not “bound to their circumstances.’’⁵⁸ Moreover, government action aimed at solving these problems not only fails but exacerbates them. This is in marked contrast to other western democracies, in which even conservative party members do not seek to dismantle welfare state policies.⁵⁹

Government entities, however, are not the only entities that can be used to combat poverty in general and homelessness in particular. Private charity and faith-based organizations can also play a role. The United States has the highest rate of religious belief among western democracies.⁶⁰ Although the religious belief of its residents has been moderately decreasing in recent decades, it remains comparatively strong.⁶¹ Churches are an increasingly used source of housing for homeless shelters.⁶² Some politicians have also voiced support for faith-based solutions to homelessness.⁶³ Given these facts, one might suspect that while Americans may be averse to government-run shelters, they may be more supportive of private, faith-based shelters. The data, however, simply does not support such a view. Faith-based shelters make up only 4% of shelter beds available to homeless people.⁶⁴ Thus, the American ideological emphasis on self-responsibility for one’s economic conditions outweighs both private, charitable responses as well as publicly funded ones.

Of course, many Americans see economically deprived individuals as the products of circumstances and many Europeans view poor individuals as personally responsible for their economic circumstances. America has no monopoly on these views. However, these ideas are substantially more widespread in the United States than in other western democracies. They are also reflected in U.S. government policy. When economically destitute individuals, like Debra Blake, are seen as solely, personally responsible for their situation, it is less likely that people holding those views will favor government policies to help people falling on hard times. This means that government-run shelters are less likely to receive political support. Other western democracies, meanwhile, are more likely to see homelessness as a product of social circumstances and societal failure, and therefore provide shelter.

Seen through this lens, America’s disinclination to build shelters for individuals facing homelessness does not arise through some unique hatred that America has for homeless people, but rather as part of a larger narrative about the way Americans and policy-makers think about poverty and its root causes.

E. Race and Homelessness

Inextricable from an explanation of homelessness in the United States is an account of who experiences homelessness. This Section shows not only the racial disparities of those experiencing homelessness, but also uses those demographics to help explain American homelessness policy and posture.

Obviously, the people who experience homelessness are those in poverty. Along these lines, Black and Latino people are already overrepresented, with roughly 20.1% of Black folks living in poverty in the United States today, despite being only 13.5% of the population.⁶⁵ The respective numbers for Latino folks are 28.4% and 19.3%.⁶⁶ But the numbers are even more exacerbated when it comes to homelessness. While 24.1% of homeless people are Latino, a staggering 37.3% of homeless people identify as Black.⁶⁷ Thus, the intersection of homelessness and race, at least for Black folks, is not merely equivalent to that of poverty and race. Rather, homeless people are disproportionately Black at a rate even more extreme than that of poverty.

We know that the general causation of these gaps in economic wealth, income, and opportunity are due to longstanding racial oppression.⁶⁸ But what effect does the fact that the majority of people sleeping on America’s streets are nonwhite have on our homelessness policy? Although a concrete answer is multifaceted and can probably only be arrived at indirectly, critical race theory can help provide answers. Doing so will help explain why America’s majority-minority homeless population does not receive the same amount of government and public care and attention as other countries.⁶⁹

One book within the discipline of critical race theory that can help explain why the racial makeup of the homeless population likely has an impact on the way homeless people are treated in the United States is Jody Armour’s book, provocatively titled N*gga Theory.⁷⁰ Although the book largely focuses on criminal law, it highlights important developments in both the history of American racism and recent research into white Americans’ relationship with Black Americans in the realm of cognitive science.

One of Armour’s central claims is that “the dominant brand of anti-black discrimination in post-civil rights era America is not active racial animus but unconscious racial bias.”⁷¹ This view leads Armour to locate the disparities in treatment across races not as the result of conscious racial hatred but rather that of unconscious or subconscious behavior of white Americans.

One of the ways this unconscious bias operates is through disparities in empathy for others as manifested in specific “neuroanatomical circuits underlying . . . cognitive processes.”⁷² Specifically, recent studies show that particular parts of the brain, such as the bilateral anterior insula, the anterior cingulate cortex, and the medial prefrontal cortex are active when individuals are feeling empathy, in both the emotional and cognitive realm.⁷³ Functional magnetic resonance imaging (“fMRI”) technology has allowed neuroscientists to measure when humans are and are not feeling empathy towards others. Unsurprisingly, many Americans tested in these studies show decreased empathetic neural activity when viewing people of different racial groups.⁷⁴ This was true, for instance, when twenty-eight participants were shown scenes depicting individuals of varying racial groups in painful or neutral situations.⁷⁵ Upon viewing these images, people who shared a social-racial identity with the person in need exhibited a higher level of empathetic neural activity than they did with those who did not share their ethnic group.⁷⁶ This was despite the fact that many people would not likely claim they have explicit racial bias, since the social consequences of having such a bias are negative.⁷⁷ Other studies involving mirror-neuron systems, which are responsible for unconsciously mirroring other individuals, show a similar level of racial bias.⁷⁸ Thus, there are empathy gaps across racial lines.

Here, it is important to note that these are not inevitable biological responses to inherent human differences. On the contrary, race is not a biological category, but a social one.⁷⁹ Thus, the status of who is “in” and “out” of one’s social group are constantly in flux.⁸⁰ More importantly, the categories are historically contingent, the outcome of social oppression and not biology.⁸¹ It is likely not the supposed differences in look or skin color that is the cause of these empathy-deficits, but rather socially-reinforced differentiation and hierarchies. Thus, America, as a multiracial liberal democracy, does not inherently have these issues of empathy gaps, but rather has them because of its specifically racist past and present, one that had a beginning and therefore (hopefully) has an end.⁸²

Armour eventually goes on to discuss how these empathy barriers contribute to disparities in judge and jury convictions of Black Americans. How do they apply to homelessness? The answer is probably intuitive: in a majority white country⁸³ with politics dominated by white individuals and interests,⁸⁴ a problem that largely affects nonwhite people is likely to be neglected. The fact that most homeless people are mostly not white means that our political system is less likely to respond urgently to the problem. It is a classic case of structural racism. This was true, for instance, of the natural disaster of Hurricane Katrina in 2005, wherein the government responded slower than it could have, an action which many people attributed to the fact that the people most in need were disproportionately Black.⁸⁵ Moreover, in the man-made disaster of the Flint, Michigan water crisis of 2014, the largely Black population of Flint likely suffered more intensely and received a less urgent response from the state due to the demographic of who was suffering.⁸⁶ In each of these catastrophes, it is likely that the empathy deficits that white officials and members of the public exhibited towards the Black victims contributed to the lackadaisical response by government actors. The same can likely be said for homelessness. If homeless people were not members of an oppressed group, it is likely that there would be a more urgent government response to their plight.

Unconscious bias may explain the lack of a response, but why the personal blame? How does the attribution of individual responsibility to those in poverty (a view that is popular in America and described above) intersect with the government’s general unwillingness to provide shelter to homeless people given the racial lens with which we are operating? Armour’s book has even more answers here. In it, he uses the work of Fritz Heider to show how people ascribe moral blame to individuals.⁸⁷ Specifically, when judging others, people who attribute one’s actions to their social circumstances are less likely to morally blame them for those actions than when they see those actions as stemming from an inner psychology.⁸⁸ When people focus on the situations in which others find themselves, they are less likely to morally blame those others for their bad acts. Applying this to the criminal sphere, a study done by Birt Duncan found that “violent acts tended to be attributed to internal causes when the harm-doer was black, but to situational causes when the harm-doer was white.”⁸⁹ Other studies have verified these findings.⁹⁰

If this phenomenon is occurring in the lab and in the courtroom, it is likely also occurring on the streets. In a country where people are already largely blamed for their actions, and the role of social circumstance is neglected, it makes sense that a racially-charged issue like homelessness would exacerbate this phenomenon. Racial minorities are likely being blamed for being homeless even more intensely than their white peers. Indeed, America’s response to homelessness exhibits precisely the kind of response we would expect if this were the case. Racism, individual and structural, is therefore not only responsible for Black people disproportionately becoming homeless, but also for their remaining homeless. The unwillingness to build homeless shelters and the tendency to blame people for the economic circumstances, which is exacerbated by the history of racial oppression and division in the United States, makes America’s response to homelessness much more understandable (though not justifiable). Thus, the empathy deficit and tendency to blame racial minorities—particularly Black folks—for their actions and economic status intensifies America’s lackluster response to homelessness.⁹¹

F. America’s Turn to Criminalization

The above sections explain why a substantial number of Americans likely, to a sizeable extent, blame homeless people for being homeless, but they do not explain why there has been an increasing trend towards criminalization of homelessness.⁹² This Section addresses this issue. Making sense of this trend requires a broader examination of criminal law and policy. Through this analysis, one can see that criminalizing homelessness and imprisoning people like Debra Blake makes sense according to the ideology of self-responsibility and America’s comparatively harsh criminal system.⁹³

The United States has the highest rate of incarceration of any western democracy, and nearly the highest incarceration rate in the world.⁹⁴ America is remarkably punitive in a number of ways. Not only is it the only western democracy to retain capital punishment, but its sentencing structure is also one of the harshest in the world.⁹⁵ This trend is relatively new. Beginning in the early 1970s, an explosion in the prison population—known popularly as “mass incarceration”—made the United States the world leader in imprisonment rates.⁹⁶ America’s recently learned penal instinct for dealing with social problems is more intense than in any other western democracy.

Coupled with this well-known trend is a lesser known but related trend: a proliferation in economic sanctions incorporated into the criminal system. There has been a surge in civil fines, court fines, and other financial penalties levied against individuals since the early 1980s.⁹⁷ Although debtors’ prisons are officially banned in every state, people who are unable to pay a variety of civil or court-imposed fines are being increasingly imprisoned as a result.⁹⁸

While laws directly, explicitly criminalizing homelessness are practically nonexistent, laws that impose fines on homeless people are increasingly being passed around the country.⁹⁹ This is the kind of criminal penalty that Debra Blake was facing. Although the statute she violated by sleeping on public land only resulted in a fine, a repeated violation of the statute, combined with her inability to pay, would have resulted in a jail sentence.¹⁰⁰ She would not have been the only homeless person with such a fate.¹⁰¹ While other countries have laws that criminalize some behavior associated with sleeping on public property,¹⁰² the wider availability of shelters makes those laws far less relevant to homeless people abroad.

The American instinct to not only blame people facing homelessness for their camping in public but also to actively oppose them through criminalization is also part of a larger trend. Violent attacks on homeless people have been on the rise in recent years.¹⁰³ When homelessness is seen by members of the public as a problem of individual responsibility, it makes sense that when one sees individuals taking up space on public streets or parks, they are angry at the individual rather than the socio-economic system that created the situation. The instinct to criminalize such behavior therefore follows from an individualization of the problem combined with an existing propensity for criminalization. If homeless people are solely responsible for their situation, and their situation interferes with a pedestrian’s ability to move about public grounds unimpeded, the justification for imprisonment on the grounds of public interference also begins to make sense. Imprisonment will solve the immediate problem of getting the person off the street and is justified due to that person’s inability to maintain the economic resources necessary to maintain shelter for themselves.

Of course, such a logic is withdrawn from the social realities that actually create homelessness.¹⁰⁴ While experts disagree on the specific means of reducing homelessness, there is a consensus that to do so, one must dramatically increase the supply of affordable housing and connect homeless people with social services and employment opportunities.¹⁰⁵ Unfortunately, for homeless people and housed people, Americans have a long history of not only ignoring expert opinion, but actively loathing expert opinion and intellectualism writ large. As Richard Hofstadter wrote in Anti-Intellectualism in American Life over 50 years ago, “intellectuals . . . are [seen as] pretentious, conceited, effeminate, and snobbish . . . .”¹⁰⁶ America has no monopoly on anti-intellectualism. Nor has anti-intellectualism as a cultural force been constant in its history. Rather, it is one that fluctuates in intensity.¹⁰⁷ Our current time, however, sees a more intense moment of this fluctuation, rendering a penal response to homelessness that deviates from expert opinion even more likely.¹⁰⁸

This hostility towards both homeless people and experts on homelessness can be seen in America’s current populist wave. While a deep analysis on the relationship between homelessness and populism is worthwhile, it extends beyond the scope of this Note. Still, a brief discussion can be given. Jan-Werner Müller defines populism as “a particular moralistic imagination of politics,” one that establishes a “morally pure” people against elites and outsiders.¹⁰⁹ While modern populists have long derided experts as part of the elite outsiders,¹¹⁰ homeless people themselves are increasingly considered outsiders (and paradoxically paired with elites), deviants who are apart from and opposed to “normal” people. For instance, former Fox News host Tucker Carlson recently argued that homelessness is the result of liberal leaders becoming “more lenient on petty crime” and that “because of their liberal attitudes and the mild climate, [Seattle] is a magnet for vagrants.”¹¹¹ Overall, political populism and a history of punitive responses to social problems are worryingly combining to produce laws that criminalize homelessness in spite of expert opinion.

In sum, America’s penal response to homelessness stems from both its conception of homelessness as a problem of individual failings combined with its comparatively harsh penal system. As a result, homelessness has become a hot-button political issue, one for which populists have whipped up anti-elite sentiment and anger about homelessness to create false narratives about homelessness and advocate punitive solutions thereto.

Homelessness and the Law

Now that an overview of homelessness, in both a comparative and historic-domestic light, has been given, we can return to an analysis of Debra Blake’s case and use it as a microcosm to understand and evaluate homelessness law in general. This Part, divided into several sections, outlines law concerning homelessness, both before and after the Court’s ruling in Grants Pass. Next, this Part argues that America needs a fundamental reckoning on not only the legal level, but also the ideological and social level. Only once our attitudes towards homeless people change from an individualist understanding to a collectivist understanding can our laws change to reflect that understanding. Absent such a deep reckoning, political and legal responses reflecting such a change are virtually impossible.

A. Law Prior to Grants Pass

Although Debra Blake passed away, the case she and her fellow residents filed, City of Grants Pass v. Johnson, did not. This Section outlines the case law surrounding Blake’s claim.

In 1962, the Supreme Court decided Robinson v. California. In Robinson, the Court struck down as unconstitutional part of a California statute that made it illegal “to be addicted to the use of narcotics.”¹¹² The Court reasoned that while it was within California’s power to regulate behavior surrounding and including the use of drugs, criminalizing someone for their status of being addicted to illegal drugs was fundamentally different. In doing so, California was enforcing a “statute which makes the ‘status’ of narcotic addiction a criminal offense.”¹¹³ Rather than criminalizing an action, the status of being addicted to an illegal narcotic was criminalized. The Court likened addiction to a chronic disease, one over which the defendant had little to no control.¹¹⁴ The Court reasoned that “in the light of contemporary human knowledge, a law which made a criminal offense of such a disease would doubtless be universally thought to be an infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.”¹¹⁵ This ruling established what became popularly known as the Eighth Amendment’s ban on “status crimes.”

Six years after Robinson, however, this doctrine was complicated by a case titled Powell v. Texas.¹¹⁶ The case concerned whether or not the state of Texas could criminalize being found drunk “in any public place, or at any private house except his own.”¹¹⁷ The petitioners argued that the statute violated the Eighth Amendment’s ban on status crimes since an alcoholic would have to drink, and would therefore inevitably violate the statute. The Powell Court distinguished the Texas statute from California’s statute in Robinson, however, in a number of ways. While certain parts of the decision argued that being drunk was an act rather than a status,¹¹⁸ other parts highlighted the fact that alcoholic individuals could choose to be drunk in their homes and therefore avoid violating the statute while maintaining their status as alcoholics.¹¹⁹ In a 4 plus 1 plurality, the Powell Court upheld the statute. Although the precedential impact of this decision was disputed,¹²⁰ it is affirmed in the Supreme Court’s decision in City of Grants Pass.

In 2006, a Ninth Circuit ruling found that the Constitution’s ban on status crimes covered homeless individuals. In Jones v. City of Los Angeles, six homeless individuals brought suit against the city of Los Angeles for an ordinance that criminalized “sitting, lying, or sleeping on public streets and sidewalks at all times and in all places.”¹²¹ The Ninth Circuit ruled that the City could neither criminalize the status of being homeless, nor acts that are an inevitable result of being homeless.¹²² The Court linked the status of being homeless to the number of shelter beds available. If the number of homeless people in a municipality “far exceed[ed]” the number of shelter beds available at any given time, the municipality will have violated the homeless individuals’ Eighth Amendment rights by enforcing a statute that criminalizes an integral aspect of their status as homeless people.¹²³ Although this specific ruling was later vacated on technical grounds, its logic and holdings were reincorporated into law for the Ninth Circuit in 2019, in Martin v. City of Boise.¹²⁴ While these holdings were not binding outside of the Ninth Circuit, they are highly relevant, as many states within the Ninth Circuit, like California, Hawaii, Arizona, and Oregon, have some of the highest rates of homelessness in the nation.¹²⁵

B. City of Grants Pass Heads to the Supreme Court

Before Martin, the City of Grants Pass enforced ordinances that fined individuals for sleeping on public grounds.¹²⁶ Although the city modified these ordinances in the aftermath of Martin, it did not repeal them. Rather, it tweaked them to only ban “camping,” which it broadly defined as sleeping while using even rudimentary assistance, like sleeping bags.¹²⁷ Still, after Debra Blake was cited for sleeping while using a sleeping bag on public property in 2019, she filed a class action lawsuit on behalf of all homeless people in Grants Pass, arguing that the city’s ordinance constituted a violation of her Eighth Amendment rights.¹²⁸ The Ninth Circuit agreed, since Grants Pass did not have enough shelter beds to house the homeless population within city limits.¹²⁹ Although the ordinance did not directly criminalize camping, mandating only civil fines, the Ninth Circuit panel found that these fines would still lead to criminal prosecution when they were inevitably unpaid by the homeless people fined.¹³⁰ Furthermore, although one could still “sleep” on public property, sleeping outside in Grants Pass, Oregon, where temperatures regularly dip into the 30s,¹³¹ surely constituted an untenable option. To sleep outside with the assistance of a blanket was the only option for the city’s homeless residents. Thus, the ordinance was struck down as violating the plaintiffs’ Eighth Amendment rights.¹³²

This ruling seemed like a hopeful victory for homelessness advocates, one that put a check on the trend of criminalizing homelessness. But the city appealed the case to the Supreme Court, who in 2024 announced their decision overturning the Ninth Circuit’s ruling to allow municipalities to criminalize homelessness.¹³³

C. The Supreme Court’s Ruling

In a decision that made headlines nationwide in June of 2024,¹³⁴ the Supreme Court reversed the Ninth Circuit’s decision and allowed Grants Pass to enforce its ordinance. Justice Gorsuch authored the opinion and was joined by the Court’s five other conservative Justices. The Court’s three liberals, meanwhile, dissented in an opinion written by Justice Sotomayor. Although the Court split along ideological lines in the decision, the decision was celebrated by conservative and liberal lawmakers alike.¹³⁵ This Section provides an overview of the opinion.

The Court’s decision does not explicitly argue that homelessness is the fault of the individual and therefore subject to criminal liability. Rather, it is implied. Moreover, personal responsibility for homelessness is the result of the Court’s logic. Nonetheless, it is still worth examining the Court’s reasoning in detail. The policy arguments are analyzed first, then the more strictly doctrinal arguments.

Almost cynically, the Court, largely parroting amicus curiae briefs submitted on behalf of Grants Pass, frames the policy criminalizing sleeping in public as one “protecting the rights, dignity[,] and private property of the homeless.”¹³⁶ The decision to ban sleeping in public, by the opinion’s logic, has as much to do with protecting homeless people as it does with serving the interests of the housed public.¹³⁷ The Court also highlights that others (with whom it is siding) have concluded that “[j]ust building more shelter beds and public housing options is almost certainly not the answer by itself.”¹³⁸ Rather, the Court concludes in its first section, after laying out the severity of America’s homelessness problem, that municipalities need “access to the full panoply of tools in the policy toolbox” to combat the issue.¹³⁹

What is odd about this abstract characterization of the problem is that it sees the Ninth Circuit’s ruling as limiting the options that municipalities have to combat the issue. But the ruling does not ban cities from criminalizing homelessness outright. Rather, it limits municipalities from doing so when the number of homeless people exceeds the number of shelter beds. All cities would have to do is build homeless shelters. They could then criminalize sleeping in public as much as they want. This argument is only engaged with indirectly by the Court. Rather than engaging with it substantively, the opinion argues that the standard is somehow not clear enough, since it may be difficult to count the number of homeless people on any given night and because it may be difficult for cities to estimate the number of shelter beds available and build adequate housing.¹⁴⁰ All the analysis really shows, however, is that many cities have not made good-faith efforts to comply with the ruling. Rather, cities have routinely crafted threadbare policies to “comply” in appearance only with the requirements set forth in Boise, then been challenged in court when their policies are shown for what they are, then complained to the courts that the standards are unworkable using their own ineptitude as the evidence. Thus, the Court uses the city governments’ incompetence to justify overturning the Ninth Circuit’s precedent. The logic does not acknowledge the agency of the cities and locates the failure as a lack of possibility rather than a lack of will. In reality, it is not the former, but rather the latter.¹⁴¹

Doctrinally, the Court all but overturns Robinson. The Court states clearly that “[t]he Cruel and Unusual Punishments Clause focuses on the question what ‘method or kind of punishment’ a government may impose after a criminal conviction, not on the question whether a government may criminalize particular behavior in the first place or how it may go about securing a conviction for that offense.”¹⁴² This language leaves no room for Robinson, since that ruling did place substantive limits on what could be punished. The Court states that it does not overrule Robinson because no party argued for it to do so.¹⁴³ Instead, it emphasizes that Grants Pass’s ordinance nominally criminalizes the act of camping rather than the act of being homeless. Responding to the argument that those acts inevitably follow from a status, the Court relies on the plurality in Powell, not discussing the argument that being intoxicated in public as an alcoholic is more voluntary than sleeping outside as a homeless person.¹⁴⁴ The Court gives brief mention of a possible common law “necessity” defense, but does not enforce it against Grants Pass and cites a case in which an Oregon appellate court appears to refuse to apply it to the homeless person cited.¹⁴⁵ Finally, the Court argues that there is no limiting principle that would restrict the conduct possibly off limits from punishment, arguing that the decision is better left to the legislature.¹⁴⁶ Given this, laws that criminalize acts that inevitably follow from a status are constitutional under the Court’s standard.¹⁴⁷ The decision reduces the power of Robinson to a mere linguistic limitation. As long as the government body does not explicitly criminalize a status, it is practically free to do so by punishing an act inevitably flowing from a status.

D. What Should the Court Have Done?

This Section devotes some time to defending the logic of the Ninth Circuit’s ruling and engaging critics who have spoken out against the ruling.

While many in the activist community and some in the legal community have already defended the Ninth Circuit’s logic,¹⁴⁸ many more in the legal academy have criticized it.¹⁴⁹ To defend many of the justifications already set forth above, the Ninth Circuit’s logic makes sense. If it is unconstitutional to punish someone for their “state of being,” something that does not have an actus reus and cannot be controlled by the individual in question, how can one criminalize acts that inevitably flow from one’s state of being? Being homeless, as the Ninth Circuit said in Jones, is no more in one’s control than being addicted to narcotics.¹⁵⁰ Moreover, even though Los Angeles attempted to ban “sleeping” on public property, which is an act rather than a status, the court’s logic was that to ban an act that inevitably follows from a status would be to offer a gaping loophole in status crime doctrine.¹⁵¹ It would allow the government, through a simple workaround, to criminalize statuses just as they had in Robinson. The law can and should hold accountable people who commit acts over which they have control, not acts that they are forced to do out of circumstance. Here, Justice White, in his concurrence in Powell, put the reasoning best:

If it cannot be a crime to have an irresistible compulsion to use narcotics, I do not see how it can constitutionally be a crime to yield to such a compulsion. Punishing an addict for using drugs convicts for addiction under a different name. Distinguishing between the two crimes is like forbidding criminal conviction for being sick with flu or epilepsy but permitting punishment for running a fever or having a convulsion. Unless Robinson is to be abandoned, the use of narcotics by an addict must be beyond the reach of the criminal law.¹⁵²

The same goes for homelessness. If it is unconstitutional to explicitly punish the status of “being homeless,” it should also be unconstitutional to punish acts that inevitably follow from being homeless, like sleeping on the street with a blanket in Oregon.

Moreover, it practically goes without saying that a prison sentence for homelessness will likely be short and will not solve the root causes of homelessness in the first place.¹⁵³ It will merely create a cycle of imprisonment and release that will only intensify and worsen the already terrible experience of homelessness.¹⁵⁴

Other legal scholars, like Martin Gardner, have argued that the logic of five Justices in Powell, and their logical descendants in Jones, apply a logic that would implode the entire criminal justice system.¹⁵⁵ Gardner argues that courts inquiring into the social circumstances of individuals who commit certain acts to determine whether or not they have the proper mens rea for violating a statute “is unwise and poses a radical threat to traditional criminal law doctrine that perhaps even threatens the continued existence of the criminal law itself.”¹⁵⁶ Such hand-wringing is likely unwarranted. Realistically, it is hard to imagine the doctrine of banning status crimes and statutes that indirectly criminalize statuses as going much further than narcotics addiction, homelessness, and perhaps some immigration status issues. Indeed, Gardner himself is light on examples.¹⁵⁷ Thus, a worry that criminal law in general faces a “radical threat” from Robinson and its progeny is likely undue.

But, for a moment, let us assume Gardner is correct, and that the logic of Robinson, Powell, and Jones, which begin to consider the social circumstances that affect the human agency of individuals who commit crimes, does begin to question the underlying premises of criminal law. Below, this Note will take the view that the aforementioned European view of human nature and decision-making is the more accurate one than the hyper-individualistic American view. Considering that view with specific regard to this case, this Note asks: why not? If people accept the underlying logic of Robinson, why not “carry things to their logical conclusion”¹⁵⁸ and begin to inquire into the social circumstances of criminals? It seems that Gardner, like the majority in McCleskey v. Kemp according to Justice Brennan, is simply afraid of “too much justice.”¹⁵⁹

From a more abstract standpoint, the status crime doctrine juxtaposed to the traditional schema for construing criminal law through actus reus and mens rea can be understood as a counter-principle juxtaposed to a principle. That is, while in current law the counter-principle takes up a minority space relative to the space occupied by the general principle, this Note argues in the general spirit of critical legal studies that there should be an inversion between the two.¹⁶⁰ That is, the status crime doctrine could be the central principle from which courts begin their analysis, while the classical view could take the minority, exceptional position.

Finally, as elaborated on below, extending the status crime doctrine to include homeless individuals better reflects the reality of their circumstances. Homelessness is a status, and sleeping on the street is an inevitable act that follows from that status. Legally acknowledging this reality not only offers protections to homeless people, but also narrows the legislative path to policies that actually address the root causes of homelessness.

Although Gardner concedes that such a reconsideration might be warranted, he argues that it must come from the legislative process rather than through courts.¹⁶¹ While there is some merit to this argument, other movements for social change have seen courts play a pivotal role in leading the way, like Brown v. Board of Education, which was responsible for ending the policy of separate but equal across the United States.¹⁶² Furthermore, others have argued that dramatic changes that moderate or curtail criminal punishment are far more likely to come from political elites (even democratically elected ones) than through mass movements or popular referenda.¹⁶³ Thus, the mere fact that courts would be responsible for such a change is not enough to object to the possibility of such change where an alternative route is not possible or highly unlikely to yield results.¹⁶⁴

One aspect of the doctrine that Gardner is correct to criticize is the status crime doctrine’s placement in the Eighth Amendment. Indeed, the Eighth Amendment was originally intended only to curtail certain methods of punishments, rather than impose substantive limits on what could be punished.¹⁶⁵ While originalism is a deeply flawed and unwise approach to constitutional law,¹⁶⁶ the original intent of an amendment should probably carry some weight. As such, Gardner thinks that the status crime doctrine should be constitutionally grounded in the Fourteenth Amendment’s Due Process Clause rather than in the Eighth Amendment.¹⁶⁷ Indeed, Robinson is the only case that has imposed substantive limits on what can be punished under the Eighth Amendment.¹⁶⁸ This Note agrees that a Fourteenth Amendment grounding is the superior place to couch the status crime doctrine. Still, this Note does not agree with Gardner that doing so would necessarily limit the logical and doctrinal consequences of Robinson, nor should it. The same arguments will inevitably be made no matter where in the Constitution status crime doctrine is placed.

In sum, the Court should have upheld the Ninth Circuit’s decision and not allowed municipalities a cheap workaround to avoid status crime doctrine. In doing so, the Court has solidified and given legal sanction to the nation’s increasing trend of criminalizing homelessness.

E. A Change in Ideology Must Now Precede a Change in Law

Now that the Court has delivered its ruling and allowed the criminalization of homelessness, a change in popular ideology and legislative posture must now precede any novel constitutional argument or policy proposals to tackle homelessness. Essentially, popular consciousness must change and precede any future change in legality in this domain. Ultimately, this Note takes the view that the European conceptualization of economic conditions in general, and homelessness in particular, better recognizes reality. People are products of their environment.¹⁶⁹ Luck plays a role not only in the situations into which people are thrown, but also the decisions they end up making in those situations.¹⁷⁰ Once more Americans begin to agree with the statement “people are poor because of an unfair society” than “people are poor because of laziness and lack of willpower,” homelessness policy can turn away from its increasingly penal tendencies and towards building shelters and restructuring economic relations. While the Ninth Circuit’s ruling was imperfect in that it did not explicitly guarantee minimum requirements of safety and standards for homeless shelters,¹⁷¹ it acknowledged that homelessness is a “status” akin to drug addiction—one that is dependent on social circumstances and not controllable predominantly by the individual. Thus, the Ninth Circuit’s ruling already contains in it the ideological shift required by the rest of the country for combatting homelessness. But absent a larger, popular recognition of the principle, our law is unlikely to reflect such a principle.

Many specific policies for ending homelessness do already exist.¹⁷² Moreover, legal arguments, like the ones outlined above and ignored by the Court, also already exist. But all of these are moot absent a shift in popular consciousness away from individualism and towards collectivism.

Conclusion

The Supreme Court decision reversing the Ninth Circuit’s ruling in Johnson is the culmination of long-standing trends of the individualization of societal problems. While America’s homelessness rate is not particularly high relative to other western democracies, its rate of unsheltered homeless people is. This is explained by America’s comparative unwillingness to spend as much as other western democracies on its social safety net. But it is also more fundamentally the product of broadly and deeply held beliefs about the root causes of poverty and homelessness as problems of individual rather than societal failure, beliefs that are exacerbated by structural racism.

The Ninth Circuit’s interpretation of the Constitution’s status crime doctrine makes sense in this light, since it accurately and shrewdly closed a loophole that governments could use to circumvent status crime doctrine. Nonetheless, the Court reversed the ruling and allowed municipalities to criminalize homelessness. The Court’s ruling effectively legitimized the view that homelessness is an individual “failing” like murder and allowed cities to criminalize people like Debra Blake. This Note has argued not only that such a ruling is misguided, but also that it rests on a fundamentally flawed view of how individuals and society interact. America’s legal approach to homelessness must see it as a social problem rather than a problem arising from a set of atomized individuals. The Supreme Court, however, has taken the opposite view. Seen through the lens of American exceptionalism, it is an exceptionally American response to further allow the criminalization of homelessness.

Appendix

Unable to find a previously published report comparing international homelessness rates, the author assembled this data using a variety of sources. This the first known assemblage of such data and should help contribute to future research in the realm of comparative politics and sociology. For Europe and the U.K., the source used is Fédération Européenne d’Associations Nationales Travaillant avec les Sans-Abri (“FEANTSA”)’s 2023 report titled Eighth Overview of Housing Exclusion.¹⁷³ For America, the U.S. Department of Housing and Urban Development’s report titled The 2022 Annual Homelessness Assessment Report (AHAR) to Congress is used.¹⁷⁴ For Canada, the report used is the Government of Canada’s “Everyone Counts 2020-2022” survey.¹⁷⁵ For Australia, see the Australian Institute of Health and Welfare’s data on homelessness and homelessness services.¹⁷⁶ For New Zealand, see the New Zealand Ministry of Housing and Urban Development, Homelessness Outlook report.¹⁷⁷ These reports consist of the most recent available data for each respective country.

Each study qualifies that their methods are imperfect and likely undercount the number of homeless people. The point of this Note is not to be the authoritative comparative source on national homelessness rates, since the data is constantly changing and not always reliable, but rather to generally observe that America has a higher rate of unsheltered homeless people than all western democracies analyzed but one, a limited claim which is justified despite some uncertainty in the data. Furthermore, this Note is meant to offer a starting point for future research on the subject, as homelessness is in flux in both the United States and in Europe.

For the population counts, this Note used the following reports: For Europe, see the same FEANTSA report referenced above.¹⁷⁸ For the United States, see the 2022 Census Bureau Data.¹⁷⁹ For Canada, see 2021 Canadian Census data.¹⁸⁰ For Australia, see the Australian Bureau of Statistics.¹⁸¹ For New Zealand, see the New Zealand Government “Stats.”¹⁸²

It is important to note, however, that various countries define homelessness differently. For instance, New Zealand counts as “homeless” people who are staying with relatives temporarily,¹⁸³ while the United States and other countries do not count this group.¹⁸⁴ Thus, in order to ensure that the proper, equivalent numbers are being compared, the data selected from each of the above sources is limited to people falling into one of three categories: (1) people “sleeping rough,” generally outdoors, (2) people sleeping in various forms of short-term emergency housing, and (3) people spending nights in designated homeless shelters. Thus, for the European data, the data from categories one, two, and three from the European Typology of Homelessness and Housing Exclusion (“ETHOS”) is used.¹⁸⁵ For the U.S. data, no special selection is required. For the Canadian data, “sheltered” and “unsheltered” people are counted.¹⁸⁶ For Australia, the categories of “[p]eople temporarily staying with other households” and “[p]eople living in ‘severely’ crowded dwellings” are excluded.¹⁸⁷ For New Zealand, the number of total homeless people is limited to people “[w]ithout shelter” and to those living in “[t]emporary accommodation,” since including the other categories would have been overinclusive.¹⁸⁸

Compiling the data from the preceding sources yields the following chart:

Figure 1. Percentage of Population Homeless by Country

The table with the raw numbers is included at the end of this Appendix for reference. For the second round of comparisons, which compared countries’ homelessness rate relative to shelter available, the following method of calculation was used. The number of people living without shelter was divided by the number of homeless people using the above methods for determining the number of homeless people. Thus, for the European data, ETHOS category 1 was used.¹⁸⁹ For the United States, the “unsheltered” category was used.¹⁹⁰ For Canada, the “[u]nsheltered” category was used.¹⁹¹ For Australia, the “[p]eople living in improvised dwellings, tents, or sleeping out (rough sleepers)” category was used.¹⁹² For New Zealand, the “[w]ithout shelter” category was used.¹⁹³ The data yields the following chart:

Figure 2. Percentage of Homeless Population Unsheltered by Country

It should be noted that not all countries, particularly in the FEANTSA report, had specific data for the number of people sheltered versus unsheltered. Five countries were unable to be included, therefore, in Figure 2: Finland, France, Ireland, Luxembourg, and Sweden. For the specific numerical breakdown of each category, a chart of the collected data is pasted below. Each number in the chart was collected using the methodology outlined above, and each chart is compiled using this data:

Table 1. Homelessness Data by Country
Country	Homeless Count	National Population	% of Population	Homeless Unsheltered	% of Homeless Population Unsheltered
Belgium	6,700	11,554,767	0.058	1,187	17.71641791
Czechia	19,653	10,649,800	0.185	8,892	45.24500076
Denmark	3,738	5,873,420	0.064	535	14.31246656
Finland	794	5,548,241	0.014	N/A	. . .
France	209,074	67,656,682	0.309	N/A	. . .
Germany	210,612	83,237,124	0.253	32,467	15.41555087
Hungary	6,944	9,689,010	0.072	1,649	23.74711982
Ireland	11,632	5,060,005	0.230	N/A	. . .
Luxembourg	420	590,667	0.071	N/A	. . .
Poland	23,812	37,972,812	0.063	2,551	10.71308584
Portugal	9,604	10,298,252	0.093	N/A	. . .
Spain	16,006	47,432,805	0.034	4,508	28.16443834
Sweden	14,065	9,995,153	0.141	990	7.0387487
EU Rate (FEANTSA)	533,054	305,558,738	0.174	N/A	. . .
United States	582,462	333,287,557	0.175	233,832	40.14545155
United Kingdom	86,288	66,796,807	0.129	17,012	19.71537178
Canada	20,000	36,991,981	0.054	5,000	25.0
Australia	58,002	25,760,867	0.220	7,636	13.165063
New Zealand	11,553	4,900,600	0.230	3,624	31.3684757

Note: Data used to produce Figures 1 and 2.

98 S. Cal. L. Rev. 761

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Jacob Schwessinger*

*Articles Editor, Southern California Law Review, Volume 98; J.D. Candidate 2025, University of Southern California Gould School of Law; M.A. 2021, University of Warwick; B.A. 2020, University of Southern California.

Introduction

I. Techno-Solutionism

A. What Is Techno-Solutionism?

B. Techno-Solutionism and Venture Capital

C. Techno-Solutionism and the Law

How Law Perpetuates Techno-Solutionism

How Law Can Be Stymied by Techno-Solutionism

II. Fintech and Techno-Solutionism

A. Financial Inclusion

B. Efficiency

C. Competition

D. Security

III. Financial Regulation and Techno-Solutionism

A. Quick Primer on Financial Regulation

B. Financial Regulation and Techno-Solutionism

Legislative Proposals

Administrative Action

i. Rulemaking and Guidance

ii. Monitoring

iii. Enforcement

Looking Forward: Financial Regulation and AI

IV. A Possible Antidote to Techno-Solutionism

Conclusion

98 S. Cal. L. Rev. 761

INTRODUCTION

I. Fair Use: Law and Theory

A. The Fair Use Doctrine

B. Theoretical Justifications of the Fair Use Doctrine

II. Fair Use as Licensing Leverage

A. The Theory

B. The Model

C. Illustrations

Oracle and the Future of Licensing in Technologies

Documentary Filmmakers

Parodies and Satires

Warhol and the Future of Transformativeness

III. Normative Implications

A. Countervailing Allocative Inefficiencies

B. Redistributing Bargaining Surplus

C. The Role of Damage Awards

D. The Latent Virtue of Ambiguity

Conclusion

98 S. Cal. L. Rev. 761

Introduction

I. The Persistent Nature of Workplace Harassment

A. The Historical Origins of Harassment

B. The Current Landscape of Workplace Harassment

C. Harassment as a Workplace Hazard

II. Legal Constraints Fail to Provide Accountability

A. The Individuation of Harassment Evidence

B. Mandatory Arbitration Provisions

C. Coverage Gaps Constrain Workers’ Access to Courts

D. Retaliation Law and Its Effect on Underreporting

E. Rigid Administrative Exhaustion Requirements Block Access to Justice

F. Severe or Pervasive Requirement Excludes Strong Claims

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

H. The Standard for Vicarious Liability

I. Damage Caps Fail to Remedy Harms

J. Implied Hierarchy of Harassment Claims

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

A. Methodology

B. Volume of Gender Equity Legislation Post #MeToo

Federal Reforms

State Reforms

i. General Trends

C. Political Trends in Gender Equity Legislation Post #MeToo

Political Party

Representation of Women Lawmakers

D. Topical Analysis of Gender Equity Legislation Post #MeToo

IV. Discussion & Implications

A. Did States Fill Any Gaps?

B. Legal Gaps in Need of Greater Attention

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

Greater Focus on Intersectional Harms

Navigating an Employer-Friendly Judiciary

Dealing with Retaliation is Required for Reforms to Work

Conclusion

Appendix A. Search Terms Used to Identify #MeToo Related Legislation

Appendix B. Search Terms Used on Bill Corpus to Verify Topic Coding

98 S. Cal. L. Rev. 761