Justice on a Budget: The $5,000 Charitable Bail Cap in “Safer” Kentucky

Justice on a Budget: The $5,000 Charitable Bail Cap in “Safer” Kentucky

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Amanda Lindsey*

Introduction

In March 2021, 17-year-old Madelynn Troutt was killed in a head-on collision in Louisville, Kentucky, by an intoxicated driver days after The Bail Project—a nonprofit that posts bail for individuals who cannot afford it—secured his release.[1] The tragedy drew widespread media attention and quickly became a flashpoint in Kentucky’s broader debate over pretrial release and bail reform.[2] In its wake, the Kentucky General Assembly enacted the Safer Kentucky Act, a sweeping criminal justice bill that, among other provisions, capped the amount charitable organizations may post at $5,000.[3] Supporters framed the measure as a public safety initiative aimed at curbing what they characterized as the indiscriminate release of potentially dangerous defendants.[4]

Madelynn’s death was undeniably tragic. Yet while the impulse to respond swiftly to such incidents is understandable, policymaking driven by singular tragedies risks obscuring systemic realities. The charitable bail cap exemplifies such reactionary legislation: it misallocates blame, reinforces structural inequities, and distracts from the deeper failures of Kentucky’s pretrial detention regime. In a system where defendants are detained not because they pose a demonstrable threat, but because they cannot afford bail, charitable bail organizations play an indispensable role.[5] In a state where pretrial incarceration rates remain high[6] and where poverty, substance abuse disorders, and racial disparities shape the contours of criminal legal outcomes,[7] restricting the capacity of charitable bail organizations will disproportionately harm marginalized communities.[8] It will also deepen the burdens on already overcrowded jails[9] and further erode the foundational presumption of innocence.[10]

This Note argues that the $5,000 charitable bail cap imposed by the Safer Kentucky Act constitutes a regressive and counterproductive policy that undermines pretrial justice without meaningfully enhancing public safety. Part I examines the structural flaws of Kentucky’s pretrial system, focusing on racial, geographic, and economic disparities. Part II traces the rise of charitable bail organizations as community-based interventions to counter wealth-based detention. Finally, Part III proposes alternative reforms that advance both public safety and equitable access to pretrial liberty.

I.                Detained by Design: Poverty, Race, and the Pretrial System in Kentucky

Kentucky incarcerates a greater share of its residents than any other independent democratic nation.[11] This staggering rate reflects not merely criminal conduct, but also decades of economic decline, racial inequality, and policy decisions that deploy incarceration as a mechanism for social control.[12]

A.     Structural Poverty and Economic Decline

Once competitive with other states, Kentucky’s economy has undergone a sustained and uneven decline.[13] The collapse of coal and manufacturing industries devastated rural and Appalachian regions, displacing thousands of workers.[14] As job opportunities disappeared, many residents were forced to migrate in search of employment.[15] Although the state generated approximately 250,000 new service-sector jobs in recent years, the majority of these jobs emerged in urban and suburban areas.[16] As a result, the regions most affected by industrial decline saw little benefit.[17] The conditions resulted not only in reduced household income but also in declining tax bases, shrinking federal support, and underinvestment in economic redevelopment.[18]

At the same time, the opioid epidemic exacerbated Kentucky’s social and economic instability.[19] Following the 1996 release of OxyContin—a highly addictive Schedule II narcotic[20]—Purdue Pharma launched an aggressive marketing campaign that disproportionately targeted Appalachian regions, including large swaths of eastern Kentucky.[21] Misled by claims about the drug’s safety and effectiveness, physicians overprescribed OxyContin at alarming rates.[22] This saturation of prescription opioids led to a sharp increase in addiction,[23] which in turn drove up drug-related arrests[24] and overdose fatalities.[25] Today, Kentucky continues to report overdose death rates that exceed those seen during the early years of the epidemic.[26]

B.     The Growth of Incarceration as an Economic Strategy

Against this backdrop of economic decline and social instability, many local governments in Kentucky turned to incarceration as a fiscal strategy.[27] Through the Class D Felony Program, the state began paying counties a per diem fee to house individuals convicted of low-level felonies who would otherwise be sent to overcrowded state prisons.[28] Initially conceived as a temporary measure, the program soon became a structural feature of Kentucky’s carceral system.[29] Counties grew reliant on per diem payments, which provided a stable source of revenue and incentivized both the expansion of jail capacity and the prosecution of low-level felony charges.[30] In Appalachian counties, for example, Class D felony convictions nearly doubled over a fifteen-year period.[31] Today, these per diem payments account for a substantial portion of local jail budgets, and facilities across the state continue to operate well beyond their intended capacity.[32]

Beyond direct state funding, Kentucky also generates revenue by imposing financial obligations on defendants and incarcerated individuals.[33] Courts routinely impose fines and fees without assessing a person’s ability to pay, even though state law allows for such waivers.[34] More than one thousand provisions in Kentucky law authorize criminal legal fines and fees, many of which directly fund courts, local agencies, and the state’s general fund.[35] As of January 2019, unpaid court debt in Kentucky exceeded $91 million.[36] Even while incarcerated, individuals are charged for basic needs such as phone calls, medical care, and commissary access.[37] Jails may also impose fees for room and board.[38] These cumulative costs often trap individuals in long-term cycles of debt, extending their entanglement with the criminal legal system.[39]

Kentucky’s reliance on incarceration as a source of revenue is not only shortsighted but also fiscally unsustainable.[40] While framed as a cost-saving strategy, this model has driven up public expenditures, as counties expand jail capacity, and the state shoulders the long-term financial burdens of maintaining an overextended carceral system.[41] The result is a system that extracts revenue from individuals entangled in the criminal legal process while draining state and local budgets.[42] This contradiction has helped drive Kentucky’s rise to the sixth-highest incarceration rate in the nation,[43] while its jails and prisons continue to operate beyond safe capacity.[44]

C.    A Pretrial System that Punishes Poverty

The fiscal incentives driving Kentucky’s reliance on incarceration have also permeated its pretrial process, producing detention decisions that turn less on risk than on economic status.[45] These burdens fall especially heavily in poorer, rural counties.[46] Although non-financial pretrial release is uncommon across Kentucky,[47] the consequences of poverty vary dramatically by jurisdiction.[48] In 2018, for instance, only 17% of defendants in Boyd County were granted non-financial pretrial release, compared to 65% in neighboring Lawrence County.[49] Even where courts impose financial conditions rather than outright denying release, most defendants remain incarcerated simply because they cannot afford bail.[50]

The consequences of wealth-based detention extend well beyond the period of confinement.[51] Empirical studies demonstrate that individuals held pretrial are more likely to lose employment, plead guilty regardless of actual guilt, and face higher conviction rates if their cases proceed to trial.[52] Moreover, those who remain detained are more likely to receive longer sentences than similarly situated defendants who were released.[53] In effect, pretrial detention imposes the harshest consequences not on those who pose the greatest risk, but on those who are too poor to buy their freedom.

D.    Racial Disparities in Kentucky’s Carceral System

The burdens of pretrial detention do not fall evenly. Alongside poverty, race plays a central role in determining who is detained before trial in Kentucky.[54] Although the state employs the Public Safety Assessment (PSA) tool to evaluate pretrial risk,[55] studies have shown that such risk assessment instruments can replicate and reinforce existing racial biases.[56] These tools rely on data points, such as prior arrests, convictions, and failure-to-appear records, that reflect decades of over-policing and disparate treatment in Black communities.[57] As a result, Black defendants are often rated as higher risk than their white counterparts, even when controlling for similar conduct or criminal history.[58]

These disparities are reflected in Kentucky’s incarceration statistics. As of 2021, Kentucky incarcerated 1,088 Black residents per 100,000, compared to only 375 white residents.[59] The Vera Institute attributes this overrepresentation to racially targeted law enforcement practices, prosecutorial discretion, and implicit bias among judges and juries.[60] Policies such as “three strikes” laws and geographically concentrated “hot spots” policing only reinforces these disparities.[61] Together, these dynamics create a pretrial system in which Black Kentuckians are more likely to be detained and to experience worse outcomes, regardless of the offense or risk posed.

II.              The Emergence and Impact of Charitable Bail Organizations

A.    Origins and Mission

Charitable bail organizations arose as community-based responses to the inequities of the cash bail system.[62] By intervening on behalf of defendants who cannot afford release, these organizations mitigate the disproportionate impact of pretrial detention on the poor.[63] Their operations are sustained primarily through private fundraising and community contributions.[64]

One of the most prominent examples is The Bail Project, which pioneered the “revolving bail fund” model.[65] Under this approach, the organization posts bail on behalf of clients, and upon refund at the conclusion of the case, reinvests those funds to secure the release of additional individuals.[66] Beyond the posting of bail, The Bail Project provides holistic support to its clients. As Bail Disrupter Megan Diebboll explains, the organization offers court reminders, transportation, and other services designed to promote compliance with release conditions.[67] It also engages in broader advocacy, documenting client experiences to highlight the systemic harms of wealth-based detention and to build public awareness of the costs imposed by cash bail.[68]

B.     Demonstrated Success

Charitable bail organizations have achieved measurable success in mitigating the disparities of the bail system. Since its founding in 2017, The Bail Project has reunited more than 30,000 individuals with their families and prevented over 1.18 million days of unnecessary incarceration.[69] Its clients appear for court at rates exceeding 90%,[70] which shows that charitable bail does not compromise court compliance.

Recent data further underscores this impact. Between 2023 and 2024, The Bail Project facilitated more than 250,000 court appearances while maintaining appearance rates above 90%.[71] During that period, roughly one-third of the Bail Project’s cases were ultimately dismissed, resulting in over 21,000 individuals freed from detention for charges that did not result in conviction.[72] These outcomes illustrate that charitable bail organizations reduce unnecessary pretrial detention without jeopardizing public safety. Although not a substitute for systemic reform, charitable bail organizations provide a critical safeguard within Kentucky’s pretrial system by ensuring that liberty is not reserved for those with financial means.

C.    Misplaced Blame on Charitable Bail Organizations

The national racial justice protests following the killing of George Floyd in 2020 marked a turning point in the visibility and political salience of charitable bail organizations.[73] Within two months, more than 10,000 protestors were arrested nationwide.[74] The wave of arrests generated an outpouring of public support, with millions of dollars raised to secure the release of detained protestors.[75] As a result, bail funds experienced a dramatic resurgence in popularity and became key players in ensuring that individuals, regardless of financial status, could await trial in their communities.[76]

Their prominence, however, drew heightened scrutiny.[77] Media outlets disproportionately emphasized isolated incidents in which defendants released with the support of charitable bail funds reoffended, even though such cases represented a small minority.[78] These narratives fueled public anxiety and provided political cover for legislatures advancing “tough-on-crime” measures.[79] As a result, charitable bail organizations were increasingly cast not as correctives to systemic inequity, but as scapegoats for broader fears about crime and disorder.[80]

This narrative crystallized in the aftermath of the tragic killing of Madelynn Troutt.[81] Her family brought suit against The Bail Project, alleging negligence in securing the release of the driver involved.[82] Both the Jefferson Circuit Court and the Kentucky Court of Appeals rejected these claims, holding that charitable bail organizations have no legal duty to investigate defendants’ backgrounds or supervise their conduct once released.[83] The courts further emphasized that imposing such obligations would constitute unsound public policy by transforming bail funds into supervisory agencies.[84]

Despite these rulings, Kentucky lawmakers seized upon the incident to advance restrictive legislation.[85] In July 2024, Kentucky enacted “Madelynn’s Law” as part of the broader Safer Kentucky Act, prohibiting charitable bail organizations from posting bail above $5,000.[86] The Act’s sponsors cited more than one hundred academic sources to justify a “tough-on-crime” approach.[87] Yet closer examination reveals that many of these authorities were outdated, tangential, or altogether unrelated to the bill’s provisions.[88]

III.            Toward a More Equitable Pretrial System: Alternatives to the Bail Cap

To address the ongoing challenges within Kentucky’s pretrial system and ensure fairer treatment of defendants, the legislature should repeal the $5,000 charitable bail cap imposed by the Safer Kentucky Act. That repeal is essential, but not sufficient. Eliminating restrictions on charitable bail organizations would restore a critical safety valve for low-income defendants, but true reform requires broader structural change. Kentucky must also modernize its pretrial decision-making by adopting more accurate risk assessment tools and drawing on lessons from states that have implemented successful bail reform policies. Together, these reforms would reduce the state’s reliance on cash bail, curtail unnecessary pretrial detention, and promote a more equitable balance between public safety and pretrial liberty.

A.     Improving Risk Assessment in Pretrial Decisions

As mentioned before, Kentucky currently relies on the Public Safety Assessment (PSA) tool,[89] which has failed to meaningfully reduce pretrial incarceration and has perpetuated racial disparities.[90] The solution is not to abandon risk assessment altogether, but to replace the PSA with a more accurate tool. One promising alternative is Colorado’s CPAT-R, an updated version of the Colorado Pretrial Assessment Tool.[91] Since its creation, CPAT-R has classified a greater share of defendants as low-risk while reducing racial disparities in outcomes.[92] It has also been validated at higher rates than comparable instruments used across the country.[93] Unlike the PSA, which narrowly weighs age, charge severity, and prior record, the CPAT-R incorporates additional factors such as education, employment, and recency of arrests.[94] By adopting a tool such as CPAT-R, Kentucky could better align its pretrial practices with the goals of fairness, efficiency, and public safety.

B.     Learning from Other States’ Bail Reform Models

Kentucky should also draw on the experiences of states that have moved beyond cash bail with demonstrable success. New Jersey’s bipartisan Criminal Justice Reform Act of 2017 reduced the state’s pretrial jail population by more than 20% while maintaining some of the lowest violent crime and gun violence rates in the country.[95] These outcomes were achieved not only by limiting the use of monetary bail, but also by expanding the use of summonses for nonviolent offenses, preventing thousands of individuals from entering the jail pipeline at all.[96]

Illinois provides an even more recent example. As the first state to abolish cash bail outright, Illinois has already reported encouraging results under the Pretrial Fairness Act.[97] In the year following implementation, the state saw reductions in both violent and property crime, decreases in jail populations, and improvements in appearance rates.[98] Crucially, Illinois paired abolition with meaningful investment—$15 million for pretrial support services—to ensure that defendants could comply with court obligations without being detained.[99]

Taken together, these models demonstrate that reducing or eliminating reliance on cash bail need not jeopardize public safety. On the contrary, bail reform can lower jail populations, reduce racial and economic disparities, and improve system efficiency. Kentucky’s continued reliance on cash bail, and now its regressive restrictions on charitable bail organizations, places it increasingly out of step with emerging national consensus.

Conclusion

Kentucky’s pretrial system continues to perpetuate systemic inequities, particularly for low-income and minority defendants. By restricting charitable bail organizations, the Safer Kentucky Act exacerbates these disparities while doing little to promote public safety. Repealing the charitable bail cap is therefore a necessary first step. But repeal must be accompanied by broader reforms: adopting more accurate and equitable risk assessment tools and following the lead of states such as New Jersey and Illinois in reducing reliance on cash bail. These reforms would not only alleviate unnecessary pretrial detention but also move Kentucky toward a more just and effective criminal justice system.

* * J.D. Expected 2026, University of Kentucky J. David Rosenberg College of Law; B.A. in Political Science, minor in Economics, 2022, Western Kentucky University. I would like to thank the Senior Staff Editors for their thoughtful feedback and careful editing of this Note. I am also deeply grateful to my family and friends for their constant encouragement and support, and to my fellow Volume 114 Editorial Board members for making this experience so meaningful.

[1] Kierstin Foote, Louisville Man Sentenced to More than 20 Years in Prison for Carjacking Leading to Crash That Killed Teen, WAVE (Jan. 27, 2025, at 18:22 EST), https://www.wave3.com/2025/01/27/louisville-man-sentenced-more-than-20-years-prison-carjacking-leading-crash-that-killed-teen [https://perma.cc/F6RL-N5FX]; Natalia Martinez, The Bail Project Once Paid $5,000 Bond for Suspect in Wrong-Way Crash That Killed High School Cheerleader, WAVE (Mar. 2, 2021, at 20:39 PM EST), https://www.wave3.com/2021/03/02/bail-project-once-paid-bond-suspect-wrong-way-crash-that-killed-high-school-cheerleader [https://perma.cc/RY7Y-SEUX].

[2]See, e.g., Mary Ramsey, Butler HS Student Killed in Crash on Dixie Highway; Louisville Man Charged with Murder, Louisville Courier J. (Mar. 3, 2021, at 06:42 ET), https://www.courier-journal.com/story/news/traffic/2021/03/01/louisville-traffic-teen-killed-monday-collision-dixie-highway/6880715002 [https://perma.cc/9P6X-69U6]; H.B. 5, 2024 Ky. Gen. Assemb., Reg. Sess. (Ky. 2024).

[3] Sylvia Goodman, The Kentucky General Assembly Passes the Safer Kentucky Act, Ky. Pub. Radio (Mar. 28, 2024, at 15:25 EDT), https://www.lpm.org/news/2024-03-28/the-kentucky-general-assembly-adopts-the-safer-ky-act [https://perma.cc/DR6T-6JA8].

[4]See id.

[5] Allie Preston, 3 Reasons Charitable Bail Funds Are Safer, More Just, and More Beneficial to Communities than Commercial Bail Companies, Ctr. for Am. Progress (Apr. 21, 2025), https://www.americanprogress.org/article/3-reasons-charitable-bail-funds-are-safer-more-just-and-more-beneficial-to-communities-than-commercial-bail-companies [https://perma.cc/U95C-KEGW].

[6]Kentucky profile, Prison Pol’y Initiative, https://www.prisonpolicy.org/profiles/KY.html [https://perma.cc/5B6P-3KK9] (“Kentucky has an incarceration rate of 889 per 100,000 people . . . meaning that it locks up a higher percentage of its people than any independent democratic country on earth.”) (last visited Mar. 22, 2026).

[7]See Bea Halbach-Singh, Jack Norton, Stephen Jones & Jessica Zhang, Vera Inst. Just., The Criminalization of Poverty in Kentucky 11–18 (2023), https://www.vera.org/publications/the-criminalization-of-poverty-in-kentucky [https://perma.cc/96UM-SM8M].

[8]See HB 5 - “Safer” Kentucky Act, ACLU (Jan. 17, 2024), https://www.aclu-ky.org/en/legislation/hb-5-safer-kentucky-act [https://perma.cc/9L8B-S3YF].

[9]See Jeremy Cherson, Bail Funds Are Better than Bail Bond Agents, Bail Project (May 29, 2025), https://bailproject.org/learn/bail-funds-are-better-than-bail-bond-agents [https://perma.cc/X4WB-D7SJ]; The Safer Kentucky Act Makes Jails and Prisons More Dangerous Under ‘Tough-on-Crime’ Guise, Louisville Courier J. (June 20, 2024 at 04:17 ET), https://www.courier-journal.com/story/opinion/2024/06/20/safer-kentucky-act-worsens-jail-and-prison-conditions/74136339007 [https://perma.cc/269A-Q4QX] (“Twenty-eight jails have 120%, or more, people than beds and ten of those jails are more than 150% overcrowded.”).

[10]See Monika Graham, It Is Time for Bail Reform in America: How Nonprofits Can Join the Fight for Pretrial Justice, All. for Just. (Apr. 18, 2023), https://afj.org/article/it-is-time-for-bail-reform-in-america-how-nonprofits-can-join-the-fight-for-pretrial-justice [https://perma.cc/5SZK-Z2E2]

[11] Prison Pol’y Initiative, supra note 6.

[12]See Halbach-Singh, supra note 7, at 15–18.

[13]See Andrew McNeill, The Lost Decades: Kentucky’s Economic Underperformance 1980-2020 9–11 (2020), https://www.bluegrassinstitute.org/content/files/2025/09/LostDecades.pdf [https://perma.cc/H5FN-R2MJ].

[14] Halbach-Singh, supra note 7, at 15.

[15]See Lyman Stone, Kentucky's Migration Story, Medium (Nov. 24, 2014), https://medium.com/migration-issues/kentuckys-migration-story-begins-in-the-bluegrass-d16606dad696 [https://perma.cc/Y7V5-GTX2].

[16] Halbach-Singh, supra note 7, at 15.

[17]See Bill Estep & Liz Moomey, ‘Trying to Hold On.’ Rural Kentucky Losing People as Urban Areas Grow., Lexington Herald Leader (Aug. 13, 2021, at 19:14 ET), https://www.kentucky.com/news/local/counties/fayette-county/article253466344.html [https://perma.cc/B6NQ-N5DH].

[18]Id.

[19] Joanna Walters, America’s Opioid Crisis: How Prescription Drugs Sparked a National Trauma, Guardian (Oct. 25, 2017, at 13:00 EDT), https://www.theguardian.com/us-news/2017/oct/25/americas-opioid-crisis-how-prescription-drugs-sparked-a-national-trauma [https://perma.cc/2QAF-TGZC].

[20] Kenneth D. Tunnell, The OxyContin Epidemic and Crime Panic in Rural Kentucky, 32 Contemp. Drug Probs. 225, 226 (2005).

[21]See Art Van Zee, The Promotion and Marketing of OxyContin: Commercial Triumph, Public Health Tragedy, 99 Am. J. Pub. Health 221, 221–23 (2009).

[22]See Press Release, H. Comm. on Oversight and Gov’t Reform, Comer: Purdue Pharma and Sackler Family Hold Tremendous Responsibility for Growing Opioid Epidemic (Dec. 17, 2020), https://oversight.house.gov/release/comer-purdue-pharma-and-sackler-family-hold-tremendous-responsibility-for-growing-opioid-epidemic [https://perma.cc/N7N5-UUWX].

[23]See Van Zee, supra note 21, at 223.

[24] Just. Pol’y Inst., Due South: Kentucky: Overhauling the Criminal Justice System 1 (2011), https://justicepolicy.org/wp-content/uploads/2022/02/due_south_-_kentucky.pdf [https://perma.cc/G5AT-43WU] (“Between 2000 and 2009, the percentage of all admissions to prison that were for drug offenses rose from 30 percent to 38 percent.”).

[25]See David Akers, Peter Rock, Svetla Slavova & Terry L. Bunn, Ky. Inj. Prevention Rsch. Ctr., Drug Overdose Deaths in Kentucky, 2000-2015 3 (2016).

[26]Id.; Mental Health and Substance Use State Fact Sheets, KFF (Mar. 20, 2023), https://www.kff.org/statedata/mental-health-and-substance-use-state-fact-sheets/kentucky [https://perma.cc/J2V5-4GSR].

[27]See Halbach-Singh, supra note 7, at 22–27.

[28]Id. at 23.

[29]Id. at 25.

[30]Id. at 24–27.

[31]Id. at 25.

[32]Id. at 25–26.

[33] Ashley Spalding, Pam Thomas, Patience Martin, Scott West & Kaylee Raymer, The Hidden Web of Criminal Legal System Fines and Fees in Kentucky, Ky. Ctr. for Econ. Pol’y 3 (2025), https://kypolicy.org/the-hidden-web-of-criminal-legal-system-fines-and-fees-in-kentucky [https://perma.cc/DU67-45NG].

[34]Id.

[35]Id. at 8.

[36]Id. at 3.

[37] Kaylee Raymer, Report:Criminal Fines and Fees Drive up Incarceration, Push Kentuckians Deeper Into Poverty, Ky. Ctr. for Econ. Pol’y (2023), https://kypolicy.org/kentucky-criminal-legal-system-fines-and-fees [https://perma.cc/PBL5-Y8WZ].

[38]Id.

[39] Spalding, supra note 33, at 1.

[40]See id. at 18.

[41]See Ashley Spalding, Pam Thomas & Dustin Pugel, The Golden Key: How State-Local Financial Incentives to Lock up Kentuckians Are Perpetuating Mass Incarceration, Ky. Ctr. for Econ. Pol’y 2 (2021), https://kypolicy.org/the-golden-key-how-state-local-financial-incentives-to-lock-up-kentuckians-are-perpetuating-mass-incarceration [https://perma.cc/C7EN-RMWS].

[42]See Vera Inst. Just., What Jails Cost Kentucky, https://www.vera.org/publications/what-jails-cost-statewide/kentucky [https://perma.cc/F946-ZZXN] (last visited Mar. 28, 2026).

[43]See Emily Widra, States of Incarceration: The Global Context 2024, Prison Pol’y Initiative (June 2024), https://www.prisonpolicy.org/global/2024.html [https://perma.cc/448Q-6XSD].

[44] Taylor Six, 234 People Have Died in Kentucky Jails Since 2020. Critics Call It a ‘Systemic Failure’,Lexington Herald Leader (Mar. 6, 2025 at 13:19 ET), https://www.kentucky.com/news/local/crime/article294662219.html [https://perma.cc/3A3E-XXWW].

[45] Ky. Advisory Comm. to the U.S. Comm’n on C.R., Locked Up for Being Poor: The Need for Bail Reform in Kentucky 9 (2021).

[46]See Vera Inst. Just., supra note 42; See Halbach-Singh, supra note 7, at 8.

[47] Ashley Spalding, Ky. Ctr. for Econ. Pol’y, Disparate Justice: Where Kentuckians Live Determines Whether They Stay in Jail Because They Can’t Afford Cash Bail, 3 (2019), https://kypolicy.org/disparate-justice-where-kentuckians-live-determines-whether-they-stay-in-jail [https://perma.cc/ZG42-YXG5].

[48]Id. at 4.

[49]Id.

[50]Id. at 5 (“At the county level, in Hopkins County 99% of cases subject to financial conditions resulted in pretrial release, while in Wolfe County, only 17% did.”).

[51] Léon Digard & Elizabeth Swavola, Vera Inst. Just., Justice Denied: The Harmful and Lasting Effects of Pretrial Detention, 2–6 (2019), https://vera-institute.files.svdcdn.com/production/downloads/publications/Justice-Denied-Evidence-Brief.pdf [https://perma.cc/KZ9C-4N9D].

[52]Id.

[53] Diana D’Abruzzo, The Harmful Ripples of Pretrial Detention, Advancing Pretrial Pol’y & Rsch. (Apr. 13, 2022), https://www.advancingpretrial.org/story/the-harmful-ripples-of-pretrial-detention-2 [https://perma.cc/EH5C-2CA8].

[54] Wendy Sawyer, How Race Impacts Who Is Detained Pretrial, Prison Pol’y Initiative (Oct. 9, 2019), https://www.prisonpolicy.org/blog/2019/10/09/pretrial_race [https://perma.cc/3TUA-C4MM].

[55] Laura & John Arnold Found., Results from the First Six Months of the Public Safety Assessment – Court in Kentucky 1 (2014), https://nmcourts.gov/wp-content/uploads/2023/11/Arnold-Foundation-Public-Safety-Assessment-Court-Kentucky-6-Month-Report.pdf [https://perma.cc/28FU-2SU5].

[56] Beth Schwartzapfel, Can Racist Algorithms Be Fixed?, Marshall Project (July 1, 2019, at 06:00 EDT), https://www.themarshallproject.org/2019/07/01/can-racist-algorithms-be-fixed [https://perma.cc/4V9H-EB98].

[57]See Megan Stevenson, Assessing Risk Assessment in Action, 103 Minn. L. Rev. 303, 328 (2018).

[58]See Ky. Advisory Comm. to the U.S. Comm’n on C. R., supra note 45, at 1.

[59] Prison Pol’y Initiative, supra note 6.

[60] Elizabeth Hinton, LeShae Henderson & Cindy Reed, Vera Inst. Just., An Unjust Burden: The Disparate Treatment of Black Americans in the Criminal Justice System 7–9 (2018), https://vera-institute.files.svdcdn.com/production/downloads/publications/for-the-record-unjust-burden-racial-disparities.pdf [https://perma.cc/J52L-FPHH].

[61]Id. at 3, 5.

[62] Preston, supra note 5.

[63]Id.

[64] Casey Mosley, Legislative Response to the Rapid Growth of Charitable Bail Organizations, 16 Tenn. J. L. & Pol’y 68, 70 (2023).

[65]Model, Bail Project, https://bailproject.org/model [https://perma.cc/XW6U-HSRY] (last visited Mar. 29, 2026).

[66]Id.

[67] Rachel Goldman, Megan Diebboll & Asia Johnson, Freedom Should Be Free: An Interview with the Bail Project, 24 CUNY L. Rev. 62, 62 (2021).

[68]Id. at 63.

[69] The Bail Project, Annual Report 10–11 (2023), https://bailproject.org/wp-content/uploads/2023/12/the_bail_project_annual_report_2023.pdf [https://perma.cc/45YX-5ENQ].

[70]Id.

[71]See id.; The Bail Project, Annual Report 14–15 (2024), https://bailproject.org/wp-content/uploads/2024/11/bail_project_annual_report_2024_web.pdf [https://perma.cc/7M58-FZCS].

[72] The Bail Project, supra note 69, at 10–11; The Bail Project, supra note 71, at 14–15.

[73] Kay Dervishi, Nonprofit Bail Funds, Fueled by a Surge of Funds After George Floyd Protests, Face New Challenges, Chron. Philanthropy (June 6, 2023), https://www.philanthropy.com/article/nonprofit-bail-funds-fueled-by-a-surge-of-funds-after-george-floyd-protests-face-new-challenges [https://perma.cc/8QBD-SWQC].

[74] Anita Snow, AP Tally: Arrests at Widespread US Protests Hit 10,000, AP News (June 4, 2020, at 03:23 EDT), https://apnews.com/article/american-protests-us-news-arrests-minnesota-burglary-bb2404f9b13c8b53b94c73f818f6a0b7 [https://perma.cc/R2MC-EYZN].

[75] Nicholas Kulish, Bail Funds, Flush with Cash, Learn to ‘Grind Through This Horrible Process’, N.Y. Times (June 26, 2020), https://www.nytimes.com/2020/06/25/business/bail-funds.html [https://perma.cc/KH6Q-6G7N].

[76]See Dervishi, supra note 73.

[77] Mosley, supra note 64, at 71.

[78] Lawrence Andrea, The Bail Project Sues Indiana over Restricting Law, Citing Constitutional Infringements, IndyStar (May 5, 2022, at 13:01 ET), https://www.indystar.com/story/news/crime/2022/05/04/bail-project-sues-indiana-over-law-restricting-who-they-bail-out-of-jail/9632177002 [https://perma.cc/6UB9-FTL8].

[79] Jamiles Lartey, These States Are Once Again Embracing ‘Tough-on-Crime’ Laws, Marshall Project (Mar. 9, 2024, at 12:00 EST), https://www.themarshallproject.org/2024/03/09/louisiana-georgia-kentucky-tough-on-crime [https://perma.cc/2N9R-SX4V].

[80] “[Republican Representative John Blanton] warned that the organizations had ‘no guardrails’ and were ‘indiscriminately going and bailing people out.’” Piper Hudspeth Blackburn, Kentucky House OKs Bill to Limit Bail Organizations, AP News (Mar. 1, 2022, at 16:46 EDT), https://apnews.com/article/shootings-kentucky-philanthropy-archive-louisville-a715ab1f0e0971cbaee8d5eb386c7328 [https://perma.cc/CD2V-F46Q].

[81]See Noelle Friel, ‘Madelynn’s Law’ in Honor of Madelynn Troutt passes as Part of Safer Kentucky Act, WAVE (Mar. 28, 2024, at 22:53 EDT), https://www.wave3.com/2024/03/29/madelynns-law-honor-madelynn-troutt-passes-part-safer-kentucky-act [https://perma.cc/FPA6-Z963].

[82] Troutt v. The Bail Project, No. 2023-CA-0171-MR, 2024 Ky. App. Unpub. LEXIS 225, at *3 (Ky. Ct. App. Apr. 19, 2024).

[83]Id. at *9–10.

[84]Id.

[85] Jack Karp, Do New Laws Seek to Regulate Charitable Bail, or End It?, LAW360 (April 5, 2024, at 19:04 EDT), https://www.law360.com/articles/1820106 [https://perma.cc/X3PG-JXNZ].

[86]Id.

[87] Sylvia Goodman, Criminologists Cited in Support of Safer Kentucky Act Wonder Why, Louisville Pub. Media: Ky. Pub. Radio (Feb. 22, 2024, at 06:00 EST), https://www.lpm.org/news/2024-02-22/criminologists-cited-in-support-of-safer-kentucky-act-wonder-why [https://perma.cc/7MXN-PHSL].

[88]Id.

[89] Laura & John Arnold Found., supra note 55, at 1.

[90]See Jeff Clayton, Kentucky Pretrial Release System – Ineffective Waste of Resources, Am. Bail Coalition (Jan. 18, 2018), https://ambailcoalition.org/kentucky-pretrial-release-system-ineffective-waste-resources [https://perma.cc/4PDQ-YQHE]; Savannah Molyneaux, Are Algorithms Increasing Bias? A Discussion of the Use of Risk Assessment Tools in Kentucky’s Criminal Courts, Ky. L.J. Online: Blogs (Apr. 23, 2024), https://www.kentuckylawjournal.org/blog/are-algorithms-increasing-bias-a-discussion-of-the-use-of-risk-assessment-tools-in-kentuckys-criminal-courts [https://perma.cc/HX5F-3AKE].

[91] Sydney Kern, Collaboration to Improve Pretrial Risk Assessment Earns National Recognition, U. of N. Colo. (July 29, 2024), https://www.unco.edu/news/articles/cpat-r-award-24.aspx#:~:text=Overall%2C%20the%20new%20tool%20worked,they%20helped%20make%20something%20meaningful [https://perma.cc/978R-8T7X].

[92]Id.

[93]Id.

[94] Lisel Petis, Tools for Safe and Smart Bail System Changes: Pretrial Assessments, R Street (July 19, 2023), https://www.rstreet.org/commentary/tools-for-safe-and-smart-bail-system-changes-pretrial-assessments [https://perma.cc/B4JX-RN4T].

[95] Thomas Hanna, The Facts on New Jersey Bail Reform, Arnold Ventures (Mar. 1, 2023), https://www.arnoldventures.org/stories/the-facts-on-new-jersey-bail-reform [https://perma.cc/FU9B-KNPG]; Chip Brownlee, New Jersey Ditched Cash Bail. Research Shows the Reform Didn’t Increase Violence, Trace (June 4, 2024), https://www.thetrace.org/2024/06/new-jersey-bail-reform-crime-data-study [https://perma.cc/WY3T-LQQ7].

[96]Tremendous Positive Change, Advancing Pretrial Pol’y & Rsch. (Nov. 10, 2020), https://advancingpretrial.org/story/tremendous-positive-change [https://perma.cc/EY8E-T5GQ].

[97]See Lisel Petis, Illinois Shows How Bail Can Work Better, R Street (Sept. 25, 2024), https://www.rstreet.org/commentary/illinois-shows-how-bail-can-work-better [https://perma.cc/QC98-M6R4].

[98]Id.

[99] Bella Lubelchek, Reinvention Through Reinvestment: How Illinois’s Pretrial Success Act Changes the Way We Should Look at Bail Reform, Columbia Pol. Rev. (Aug. 12, 2024), https://www.cpreview.org/articles/2024/8/reinvention-through-reinvestment-how-illinoiss-pretrial-success-act-changes-the-way-we-should-look-at-bail-reform [https://perma.cc/3JZB-G8ZC].

National Security vs. Constitutional Transparency: Reassessing the Experience and Logic Test

National Security vs. Constitutional Transparency: Reassessing the Experience and Logic Test

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Conor Washburn*

Introduction

In June of 1971, Daniel Ellsberg leaked the “Pentagon Papers,” exposing decades of United States government deception regarding the Vietnam War.[1]

In response, President Nixon formed the “White House Plumbers,” a covert unit tasked with preventing further leaks.[2] The covert unit’s illegal activities, culminating in the Watergate break-in, revealed the executive branch’s misuse of federal agencies for unlawful political surveillance.[3] These abuses prompted investigations that exposed systemic gaps in the oversight of domestic intelligence operations.[4]

In 1978, Congress passed the Foreign Intelligence Surveillance Act (“FISA”) to establish a legal framework for foreign intelligence gathering.[5] FISA governs four categories of activity: “(1) electronic surveillance, (2) physical searches, (3) pen registers and trap and trace (PR/TT) devices, . . . [and] (4) the production of certain business records.”[6] Agencies request authorization for these activities through the Foreign Intelligence Surveillance Court (“FISC”), a specialized court created to act as a “neutral arbiter of agency requests.”[7] The FISC hearings, in which requests for surveillance are considered, are ex parte and classified; the target of the order is not informed that an order has been issued, nor are they allowed to appear at the hearing, creating a judicial system largely hidden from any kind of oversight.[8]

Concerns about the breadth of this secrecy escalated in 2013, when Edward Snowden disclosed that U.S. intelligence agencies were operating bulk data collection programs, many of which had been approved by the FISC.[9] These revelations, which included warrantless acquisition of phone records and internet communications, raised alarms about the impact of such programs on privacy, free expression, and associational rights.[10] In response, Congress enacted the USA Freedom Act, requiring the Director of National Intelligence to declassify and release FISC opinions containing “significant interpretations” of law, subject to redaction where necessary for national security.[11]

Despite the Freedom Act’s mandate for increased transparency, records from FISC hearings regularly continue to be withheld.[12] Crucially, the USA Freedom Act’s declassification requirements only apply to FISC opinions issued after June 2015, leaving a vast archive of pre-2015 rulings—including those authorizing post-9/11 surveillance expansions—completely inaccessible.[13] This loophole hampers litigation efforts challenging the legality of intelligence programs that have impacted the civil liberties of millions of Americans.[14]               

To restore public trust and uphold democratic accountability, the Foreign Intelligence Surveillance Court (“FISC”) must implement greater transparency in releasing its rulings to the public. The “experience and logic” test must be reevaluated to better align the government’s national security interests with the public’s right to access critical judicial information affecting their fundamental liberties.

This Note will explore the concept of “secret law” and its impact on democratic participation and judicial oversight; analyze the First Amendment right of access, including its historical foundations and the Supreme Court’s expansion beyond criminal trials; and evaluate conflicting arguments over public access to FISC opinions, contrasting the ACLU’s call for transparency with the government’s national security concerns. It will then examine how FISC’s exceptionalism departs from constitutional norms, assess the “compelling need for secrecy” doctrine as a traditional check on confidentiality, and propose refining the “experience and logic” test by incorporating heightened judicial scrutiny and periodic review to better balance transparency, security, and the public’s right to know.

I.  “Secret Law”

“Secret law”—undisclosed legal memos, agency rules, and court opinions—sets binding standards without public scrutiny, limiting democratic participation, weakening legislative and judicial oversight, and enabling unchecked executive power.[15] When legal determinations remain hidden, the executive branch can define the scope of its authority without meaningful review, and higher courts lose the ability to ensure alignment with constitutional guarantees.[16] Secrecy also undermines stare decisis: undisclosed rulings deprive courts and litigants of guidance, producing inconsistent outcomes and eroding the coherence and predictability of the legal system.[17]

The legal analyses drafted by the FISC authorizing the kind of bulk collection programs that were exposed by Edward Snowden are the epitome of secret law. Snowden exposed thousands of classified documents as part of his leaks.[18] Contained in these documents was information about the authorization of programs known as “Prism” and “XKeyscore,” the latter of which the FISC has never declassified a ruling on.[19] The Prism program allowed the National Security Agency (“NSA”), through secret agreements with companies like Facebook, Google, Microsoft, Yahoo, Skype, and Dropbox, to access emails, documents, photos, and other kinds of private data stored on these companies’ servers.[20] The XKeyscore program functioned as the “NSA’s Google” and enabled agents to access a target’s private internet data by being secretly integrated with the physical fiber optic cables that carry the bulk of the world’s internet traffic; all that was required was the target’s email address.[21] Also detailed in these leaked documents was a claim by the NSA that FISA allowed them to secretly collect the phone records of millions of Americans from telecommunication companies like Verizon under its “business records” provision.[22]

To obtain these individual phone records, the government had to get a “Section 215” order approved by the FISC.[23] The government’s requests for the orders and the FISC’s ruling on those requests are classified, and in 2012, the FISC approved all 212 requests it received.[24] When it comes to Prism, however, the FISC’s role is limited. The government is not required to go before the FISC to receive authorization for individual surveillance orders.[25] Instead, the FISC is tasked with approving “targeting and minimization” procedures that aim to limit the amount of American citizens’ information that is captured by the program being implemented.[26] As part of its approval process, the FISC reviews whether the agencies’ proposed procedures comply with the Fourth Amendment.[27] The FISC, however, has no authority to periodically review the programs that it approves in order to make sure that the government is complying with its proposed “targeting and minimization” procedures, and both the procedures and FISC orders authorizing them are classified.[28]

In this case, the legal opinions being withheld from the public affect the rights of nearly every American.[29] By limiting knowledge of the legal framework that authorizes intelligence and national security programs, the balance of power erodes, weakening accountability and undermining democratic governance. Beyond the separation of powers, secret law calls into question the perceived legitimacy of government decisions. Citizens who cannot access or understand the rules that govern them may rightfully question whether authorities are acting within their legal bounds, leading to broader disillusionment and reduced civic engagement.[30] Over time, this sense of alienation can become entrenched, resulting in a populace skeptical of both the government’s motives and the fairness of its institutions. As secrecy expands, so too does the risk of surveillance practices creeping beyond their intended limits, redefining civil liberties in ways that the public never consented to and, in many cases, never even knew existed. If left unchecked, this structural opacity risks embedding an unreviewable system of executive power into the legal framework itself.

II.  First Amendment Right of Access

The secrecy surrounding FISC opinions is not simply poor policy—it raises legitimate constitutional concerns. In 2020, the FISC ruled that there is no First Amendment right of access to its opinions.[31] While not explicitly stated in the Constitution, the Supreme Court (“SCOTUS”) has recognized this right as implicit in the First Amendment.[32] In the landmark Richmond Newspapers case, the Court invalidated a trial judge’s order excluding the public during witness testimony,[33] emphasizing that “the trial has been open to all who cared to observe.”[34] The Court also noted that openness is essential to the proper functioning of a trial, saying that “it gave assurance that the proceedings were conducted fairly to all concerned, and it discouraged . . . decisions based on secret bias or partiality.” [35]

Two years later, in Globe Newspaper Co., the Court struck down a Massachusetts statute mandating closed courtrooms during testimony of minor victims in sex crime cases,[36] holding that, “[p]ublic scrutiny of a criminal trial enhances the quality and safeguards the integrity of the fact-finding process . . . .”[37] Public access, the Court explained, “fosters an appearance of fairness, thereby heightening public respect for the judicial process.”[38]

A.  Expansion of the Right of Access Beyond the Trial

The Supreme Court later expanded on the right of access doctrine in Press-Enterprise I and II, applying the right of access to jury selection and preliminary hearings in criminal cases.[39] In Press-Enterprise I, where most of a six-week jury selection was closed and transcripts were withheld,[40] the Court held that closure must be, “rare and only for cause shown that outweighs the value of openness.”[41] Cause, the Court states, means “an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.”[42]

Press-Enterprise II extended the right to preliminary hearings,[43] introducing the “experience and logic” test.[44] Under this test, courts first look at whether there has been a “tradition of accessibility” to the type of hearing being conducted.[45] Courts then look at whether access to the hearing “plays a particularly significant positive role in the actual functioning of the process.”[46] Importantly, the Court held that public access could outweigh a limited history of openness.[47] In El Vocero de Puerto Rico, the U.S. Supreme Court reaffirmed that the right of access applies to preliminary hearings in Puerto Rico, rejecting the local court’s reasoning that a small population justified closure.[48] “Experience,” the Court clarified, refers to the tradition in the U.S. as a whole—not the practice of a single jurisdiction.[49]

B.  Right of Access Beyond Criminal Proceeding

In the early 2000s, the Supreme Court extended the First Amendment right of access beyond criminal proceedings for the first time.[50] In Ashcroft, the Executive Branch sought to close a deportation hearing by labeling it a “special interest” case.[51] The government argued that the “experience and logic” test applied only to judicial, not administrative proceedings.[52] The Court disagreed, holding that, “[t]he First Amendment question cannot be resolved solely on the label we give the event . . . .”[53] The government further argued that closure was justified to prevent “mosaic intelligence” from revealing sensitive investigative details.[54] The Court rejected this argument, stating that the mere possibility of piecing together such information was insufficient, and warning that, “[w]hen government begins closing doors, it selectively controls information rightfully belonging to the people.”[55]

Nine years later, in litigation brought by the New York Civil Liberties Union (“NYCLU”), the Court struck down a New York City Transit Authority (“NYCTA”) policy excluding certain observers from Transit Adjudication Bureau hearings.[56] The NYCTA argued that there was no right of access to such administrative proceedings.[57] The Court disagreed, holding that the right of access does not depend on the branch of government conducting the proceeding, and that the NYCTA failed to show reasonable grounds for limitation.[58]

III.  Conflicting Interests

A.  The ACLU’s Interest in Disclosure

Similar to the NYCLU, the ACLU argues that the First Amendment gives the public a right to access FISC decisions containing significant legal opinions.[59] These decisions implicate the “privacy, expressive, and associational rights of every American.”[60] After 9/11, the Foreign Intelligence Surveillance Court (“FISC”) interpreted sections of the Foreign Intelligence Surveillance Act of 1978 (“FISA”) to authorize surveillance programs that collected mass amounts of Americans’ data.[61] In 2008, Congress amended FISA and authorized FISC to approve targeting procedures which acquired international communications of American citizens—without a warrant—under the guise of targeting foreign nationals.[62]

The FISC has also issued opinions evaluating the legality of similar programs used by the U.S. intelligence community. In 2011, the FISC issued an opinion assessing the legality of the NSA’s use of “about” collection to scan Americans’ communications for specific terms that the government deemed to be associated with its foreign intelligence targets.[63] Two years later, the FISC reexamined and upheld a 2006 authorization allowing bulk collection of domestic call records.[64] Finally, in 2018, the FISC ruled on warrantless searches of international communications databases for U.S. citizens’ information, all of which were classified.[65]

Traditionally, the FISC did not publish any of the decisions it made. Between 1978 and 2013, only two of the FISC’s opinions were ever actually published.[66] It was not until the passage of the USA Freedom Act in 2015 that Congress required the government to conduct a review of all FISC opinions and make available to the public opinions that “include a significant construction or interpretation of any provision of law.”[67] The Act’s review process, however, is flawed: it is conducted solely by the executive branch, it excludes pre-2015 opinions (when many bulk collection programs were authorized), is subject to a “national security waiver,” and omits the “experience and logic” test.[68]

Executive-only review raises three problems. First, the branch responsible for surveillance has an inherent bias toward secrecy. Second, without judicial oversight, the executive avoids scrutiny from courts that could check overbroad secrecy claims. Third, the “national security waiver” is vulnerable to abuse. A national security waiver can block the release of a FISC opinion if: (1) the Director of National Intelligence (“DNI”), in consultation with the Attorney General (“AG”) determines that it is necessary to protect the U.S., its intelligence sources, or methods, and (2) the DNI issues an unclassified statement, prepared by the AG, summarizing the decision and, “to the extent consistent with national security,” its context.[69] This statement, however, must contain “no part of the opinion of the [FISC] or [FISCR],” which means that the public receives little to no insight into the court’s reasoning or its underlying legal arguments.[70]

B.  The Government’s Interest in Secrecy

In 2013, the government opposed the ACLU’s request to publish FISC opinions authorizing mass surveillance programs, arguing that disclosure could jeopardize intelligence activities and that the ACLU failed both prongs of the “experience and logic” test.[71] In evaluating the “experience” prong, the government relied on El Vocero de P.R., which held that “experience” refers to national, not jurisdictional, practice.[72] Because the FISC’s docket consists exclusively of national security matters, it operates primarily in secret, with public access being the exception.[73] The government contends that this makes it fundamentally different from other Article III courts; therefore, the ACLU’s reliance on the tradition of openness in other courts is misplaced.[74]

On the “logic” prong, the government again invoked national security, claiming that openness would hinder—not enhance—the court’s effectiveness by exposing sensitive intelligence gathering methods and targets.[75] On the contrary, opponents argued that public access would promote trust in the judiciary and enhance democratic accountability, thus improving—not hindering—the court’s effectiveness.[76] A brief filed by former intelligence community officials contends that “the trust and confidence of the public and the assurance of strong and credible oversight are critical” in matters of national security, warning that excessive secrecy risks harmful unauthorized leaks.[77]

When another FISC petition for access was reviewed in 2020, the reviewing court asserted that the FISC lacked jurisdiction to hear First Amendment claims, emphasizing that its authority is limited to powers expressly granted by the FISA.[78] One year later, in 2021, this matter was brought before the United States Supreme Court as a petition for a writ of certiorari, which was denied.[79] Justice Gorsuch and Justice Sotomayor dissented from the court’s decision to deny cert, stating: “On the government’s view, literally no court in this country has the power to decide whether citizens possess a First Amendment right of access to the work of our national security courts.”[80] Historically, courts have recognized that all Article III courts have “supervisory power over [their] own records and files,” further bolstering the ACLU’s argument that the FISC can hear right of access cases.[81]

IV.  FISC’s Exceptionalism vs. Constitutional Norms

The FISC’s claim that it is unlike other Article III courts echoes the concept of “administrative law exceptionalism”—the mistaken belief that a regulatory field is so unique that general legal principles do not apply.[82] Other specialized tribunals (e.g., the Tax Court) have faced allegations of “administrative exceptionalism.”[83] The FISC stands out, however, for its nearly unreviewable secrecy. By design, it depends on unilateral executive branch certifications and operates without a robust adversarial challenge, conditions that critics have warned can produce bias favoring government submissions.[84]

The Court in Globe Newspapers held that closing judicial process off from the public undermines the “essential component” of transparency in the judicial system, which the Court deemed vital to maintaining public confidence.[85] Likewise, El Vocero de Puerto Rico rejected the notion that constitutional norms vary with a court’s docket when fundamental rights are at stake.[86] Yet, the FISC’s ex parte process and classified publications create a dual legal system: one for national security, another for all else—directly contradicting Boumediene v. Bush, which rejected parallel legal structures even in wartime.[87]

This structural divergence from Article III norms is not merely procedural but existential. Unlike other federal courts, which operate under a presumption of transparency as articulated by Richmond Newspapers, the FISC functions as a constitutional anomaly—a court whose very existence relies on sustained secrecy.[88] Absent adversarial testing, flawed reasoning can calcify into precedent without the safeguards needed to protect fundamental rights. The Supreme Court has repeatedly rejected blanket security claims used to justify excessive secrecy. In Globe Newspapers, it required evidence-based risks before closing proceedings.[89] Similarly, in Detroit Free Press v. Ashcroft, the Sixth Circuit applied the First Amendment right of access to “special interest” terrorism cases, dismissing the “mosaic” theory for aggregated non-classified details—underscoring that national security claims must be tied to concrete, demonstrable harm.[90]

V.  Refining the Experience and Logic Test

The ACLU’s argument for a First Amendment right of access to FISC opinions hinged on the “experience and logic” test articulated in Press-Enterprise II, which asks whether a proceeding has historically been open and whether transparency enhances fairness.[91] The government maintains that national security concerns exempt FISC opinions from this test.[92] The “experience and logic” test can be refined to balance both transparency and security by integrating elements of the “compelling need for secrecy” standard used for grand jury proceedings. Secrecy, while essential for protecting intelligence-gathering techniques and sensitive operations, must be reassessed when FISC opinions directly impact every American’s constitutional rights.

Under this refined approach, secrecy would be the exception, not the rule. [93] Consistent with precedent established by Press Enterprise II and Detroit Free Press, withholding disclosure should require a compelling, particularized showing of a substantial probability of harm, supported by concrete facts rather than vague assertions.[94] Demanding a higher evidentiary standard minimizes the risk of overbroad secrecy and ensures that closed proceedings and redacted decisions are limited to situations where no alternative measure—like partial redactions, in-camera review, or delayed release—would suffice.

While amicus curiae or “amici” have historically provided some check on FISC proceedings, their role is limited: their appointments are discretionary, their access to case information is incomplete, and they cannot seek appellate review.[95] Only the government can appeal an adverse decision of the FISC, thus limiting judicial review to a one-way street.[96] To counter this imbalance, requests for closure or redaction should undergo judicial—not executive—review by an independent panel of judges.[97] This safeguard reinforces the separation of powers and ensures that the executive cannot unilaterally decide what remains secret.

Periodic reassessment is also essential. If redaction or withholding is initially justified, the decision should be revisited at regular intervals to determine whether the threat remains credible. As in Gillispie, the need for secrecy may diminish over time; if the government cannot demonstrate an ongoing particularized risk, the presumption of openness should prevail.[98] Ultimately, this refined approach to the “experience and logic” test respects legitimate security needs while protecting democratic oversight. By requiring particularized evidence of harm, mandating independent judicial review, and limiting secrecy to circumstances where no alternatives suffice, the judiciary would strengthen public trust and uphold the principle that transparency is the rule, not the exception.   

Conclusion

The First Amendment right of access continues to serve as a pivotal safeguard for transparency, even in settings where the government asserts national security interests. By strengthening the “experience and logic” test, this Note advances a model in which courts demand specific and imminent evidence of harm before restricting public access. Such a requirement ensures that secrecy remains an exception rather than a default rule, especially when judicial opinions involve fundamental constitutional rights of privacy. Without reform, judicial deference to executive secrecy risks normalizing secret law, eroding public trust, and weakening democratic accountability. A government that operates in secrecy does not just withhold information; it alters the very relationship between the state and its citizens, replacing transparency with unilateral control.

Specialized courts like the FISC should not function as extensions of the executive. Judicial—not executive—control over secrecy decisions is essential to maintaining checks and balances. Detroit Free Press stands as a reminder that broad invocations of “national security” cannot substitute meaningful oversight: “A government operating in the shadow of secrecy stands in complete opposition to the society envisioned by the Framers . . . .”[99] In essence, maintaining open proceedings encourages accountability and public confidence in the rule of law. Adopting a heightened standard for closure or redaction can balance national security needs with public access. Requiring independent judicial review, particularized proof of harm, and periodic reassessment promotes transparency without compromising legitimate security needs. As Justice Brennan observed, “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.”[100]

* J.D. Expected 2026, University of Kentucky J. David Rosenberg College of Law; MBA 2026, University of Kentucky Gatton College of Business and Economics; B.S. Political Science, minor in Legal Studies 2022, Murray State University. I would like to thank Eleri, my wife, for reading this Note and providing me with her feedback, my family for supporting me in all that I do, and the KLJO team for their efforts in helping to edit this piece.  

[1] See Pentagon Papers, Watergate and Trials, UMassAmherst,

[2] Id.

[3] See Malcolm Farnsworth, Watergate Chronology, Watergate.info, https://watergate.info/chronology [https://perma.cc/6X3B-YVX4] (last visited Oct. 22, 2024) (describing the political events that took place after the Watergate break-in); Benjamin R. Civiletti, Att’y Gen. of the U.S., Remarks at the Annual Dinner of the University of Chicago Law School and Alumni Association: Watergate Legislation in Retrospect (Apr. 25, 1980), in Dep’t of Justice NCJRS Virtual Library, 1980, at 1, 1–2.

[4] Civiletti, supra note 3, at 1–2.

[5] Andreas Kuersten, Cong. Rsch. Serv., IF11451, Foreign Intelligence Surveillance Act (FISA) (2024).

[6] Id.

[7] FISA & Section 702 FAQs, A.B.A., https://www.americanbar.org/groups/law_national_security/resources/fisa-section-702/faq [https://perma.cc/K8GG-Y9VB] (last visited Mar. 3, 2026); see also Kuersten, supra note 5 (describing the purpose of FISC).

[8] Foreign Intelligence Surveillance Court (FISC), Epic, https://epic.org/foreign-intelligence-surveillance-court-fisc [https://perma.cc/3WJR-HPTS] (last visited Oct. 23, 2024).

[9] Ewen Macaskill & Gabriel Dance, NSA Files: Decoded, What the Revelations Mean for You, Guardian (Nov. 1, 2013), https://www.theguardian.com/world/interactive/2013/nov/01/snowden-nsa-files-surveillance-revelations-decoded#section/1 [https://perma.cc/QG8V-V6LP].

[10] See Motion of ACLU for the Release of Court Records, In re Opinions and Orders of this Court Containing Novel or Significant Interpretations of Law (FISC Oct. 18, 2016).

[11] See id. (explaining Congress’ response with the USA FREEDOM Act); Foreign Intelligence Surveillance Court (FISC), supra note 8.

[12] Charlie Hogle & Alex Abdo, The Public Should Have Access to the Surveillance Court’s Opinions, Just Sec. (Apr. 19, 2021), https://www.justsecurity.org/75809/the-public-should-have-access-to-the-surveillance-courts-opinions [https://perma.cc/WNG3-TRLM].

[13] Id.

[14] See id. (explaining how the FISC and its appellate court have refused to consider First Amendment motions).

[15] Secret Law, Brennan Ctr. for Just., https://www.brennancenter.org/issues/protect-liberty-security/transparency-oversight/secret-law [https://perma.cc/8BJK-9SNZ] (last visited Jan. 3, 2025); see Bethany A. Davis Noll & Richard L. Revesz, Regulation in Transition, 104 Minn. L. Rev. 1, 4 (2019) (arguing shifts “in regulatory policy has been undertaken with low-visibility strategies,” which enables unchecked executive authority).

[16] See Noll & Revesz, supra note 15, at 100; Elizabeth Goitein, Secret Law is Not the Solution to an Overbroad Surveillance Authority, Brennan Ctr. for Just. (June 11, 2024), https://www.brennancenter.org/our-work/analysis-opinion/secret-law-not-solution-overbroad-surveillance-authority [https://perma.cc/6W5T-LDJ8]; Bruce Fein, Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy 44 (2008).

[17] Randy J. Kozel, Settled Versus Right: A Theory of Precedent 4–5 (2017).

[18] 15 Top NSA Spy Secrets Revealed by Edward Snowden, Spyscape, https://spyscape.com/article/15-top-nsa-spy-secrets-revealed-by-snowden [https://perma.cc/CWC4-AU3S] (last visited Feb. 25, 2025).

[19] Id.

[20] Id.

[21] Id.

[22] Are They Allowed to Do That? A Breakdown of Selected Government Surveillance Programs, Brennan Ctr. For Just. (July 15, 2013), https://www.brennancenter.org/our-work/research-reports/are-they-allowed-do-breakdown-selected-government-surveillance-programs [https://perma.cc/UL43-LJZM].

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] Hogle & Abdo, supra note 12.

[30] See Bruce Ackerman, The Decline and Fall of the American Republic 95–96 (2010).

[31] Meenakshi Krishnan, The Foreign Intelligence Surveillance Court and the Petition Clause: Rethinking the First Amendment Right of Access, 130 Yale L.J. 723, 723 (2021).

[32] Christopher Dunn, Column: Rediscovering the First Amendment Right of Access (New York Law Journal), NYCLU (Aug. 4, 2011), https://www.nyclu.org/commentary/column-rediscovering-first-amendment-right-access-new-york-law-journal [https://perma.cc/TVK7-RQM7].

[33] Richmond Newspapers, Inc., v. Virginia, 448 U.S. 555 (1980).

[34] Id. at 564.

[35] Id. at 569.

[36] Globe Newspaper Co., v. Superior Court, 457 U.S. 596, 599–600 (1982).

[37] Id. at 606.

[38] Id.

[39] Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984); Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986).

[40] Press-Enterprise Co., 464 U.S. at 510.

[41] Id. at 509.

[42] Id. at 510.

[43] Press-Enterprise Co., 478 U.S. at 10.

[44] Id. at 9.

[45] Id. at 10.

[46] Id. at 11.

[47] Id. at 12–13.

[48] El Vocero de Puerto Rico v. Puerto Rico, 508 U.S. 147, 149 (1993).

[49] Id. at 150.

[50] Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2002).

[51] Id. at 683.

[52] Id. at 694.

[53] Id. at 695.

[54] Id. at 709.

[55] Id. at 683, 709.

[56] N.Y.C.L. Union v. N.Y.C. Transit Auth., 684 F.3d 286, 289 (2d Cir. 2012).

[57] Id. at 289–90.

[58] Id. at 290.

[59] Rohini Kurup, Civil Liberties Groups Ask Supreme Court to Make FISC Opinions Public, LAWFARE (Apr. 20, 2021), https://www.lawfaremedia.org/article/civil-liberties-groups-ask-supreme-court-make-fisc-opinions-public [https://perma.cc/WMN4-RRLF].

[60] Id.; Petition for Writ of Certiorari or Mandamus, In re Opinions and Orders of the FISC Containing Novel or Significant Interpretations of Law, at 3 (U.S. 2021) [hereinafter Opinions]; RCFP Backs Supreme Court Petition Concerning Access to FISC Decisions, Reps. Comm. For Freedom of The Press (May 27, 2021), https://www.rcfp.org/briefs-comments/aclu-v-united-states [https://perma.cc/3Z7B-9E6G].

[61] Opinions, supra note 60, at 3.

[62] See id.

[63] Id. at 4; See All About "About" Collection, Elec. Frontier Found., https://www.eff.org/pages/about-collection#:~:text=That%20term%20refers%20to%20the,identifier%20used%20by%20a%20target [https://perma.cc/WBC5-SAWD].

[64] Opinions, supra note 60, at 4.

[65] Id.

[66] Id.

[67] Id. at 5 (citing 50 U.S.C. § 1872(a)).

[68] See id.

[69] Declassification of Significant Decisions, Orders, and Opinions, 50 U.S.C. § 1872 (2015).

[70] See id.

[71] Brief for the United States at 4, 14–15, In re Ord. of this Ct. Interpreting Section 215 of the Patriot Act, No. Misc. 13-02, 2013 WL 5460064, at *1–2 (FISA Ct. Sep. 13, 2013).

[72] Id. at 5; El Vocero de P.R. (Caribbean Int'l News Corp.) v. Puerto Rico, 508 U.S. 146, 150 (1993).

[73] Brief for the United States, supra note 71, at 6.

[74] Id. at 7–8.

[75] Id. at 10–11.

[76] Motion of The American Civil Liberties Union, The American Civil Liberties Union of the Nation's Capital, and The Media Freedom and Information Access Clinic for the Release of Court Records at 9, In re Ord. of this Ct. Interpreting Section 215 of the Patriot Act, No. Misc. 13-02, 2013 WL 5460064 (FISA Ct. 2013).

[77] Jameel Jaffer & Patrick Toomey, A New Consensus Around Transparency and National Security Surveillance, ACLU (June 1, 2021), https://www.aclu.org/news/national-security/a-new-consensus-around-transparency-and-national-security-surveillance [https://perma.cc/M823-3QN5]; Brief of Former Government Officials as Amici Curiae in Support of Petitioner at 5, Am. C.L. Union v. United States, 142 S. Ct. 22 (2021) (No. 20-1499).

[78] See In re Opinions and Orders by the FISC addressing bulk collection of Data under the Foreign Intelligence Surveillance Act, No. FISCR 20-01, 8-12 (F.I.S.C.R. Apr. 24, 2020) (denying a movant’s petition for review of a decision of the United States Foreign Intelligence Surveillance Court rejecting a movant’s First Amendment claims because the FISC lacked jurisdiction to hear the same).

[79] ACLU v. United States, No. 20–1499, slip op. at 2 (U.S. Nov. 1, 2021) (Gorsuch, J., dissenting) (order denying certiorari).

[80] Id.

[81] Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978); see also Hogle & Abdo, supra note 12 (noting that the FISC and FISCR have inherent authority over the management of and public access to their own records).

[82] Christopher J. Walker, The Stages of Administrative Law Exceptionalism, Yale L.J. on Regul.: Notice & Comment (Jan. 21, 2017), https://www.yalejreg.com/nc/the-stages-of-administrative-law-exceptionalism [https://perma.cc/FYN6-BMKS].

[83] Id.

[84] John O. Tyler, Jr., FISA vs the Constitution, Houston Christian Univ. (July 24, 2018), https://hc.edu/news-and-events/2018/07/24/fisa-vs-the-constitution [https://perma.cc/Y44R-6VYR].

[85] Globe Newspaper Co. v. Superior Ct., 457 U.S. 596, 606 (1982).

[86] El Vocero de P.R. v. Puerto Rico, 508 U.S. 147, 149 (1993).

[87] See Boumediene v. Bush, 553 U.S. 723, 764–66 (2008).

[88] Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573, 575–581 (1980).

[89] See Globe Newspaper Co., 457 U.S. at 609–610.

[90] Detroit Free Press v. Ashcroft, 303 F.3d 681, 706, 710 (6th Cir. 2002).

[91] See Opinions, supra note 60, at 4; Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8 (1986).

[92] See Orders Issued, supra note 71, at 3, 5.

[93] See Richmond Newspapers Inc., 448 U.S. at 573 (noting, by negative implication, that secrecy should not be presumed).

[94] Press-Enterprise Co., 478 U.S. at 13–14; Detroit Free Press, 303 F.3d at 706–707.

[95] Chris Baumohl, Reforming 702: Strengthening FISA Amici, Elec. Priv. Info. Ctr. (Mar. 2, 2023), https://epic.org/reforming-702-strengthening-fisa-amici [https://perma.cc/AYT5-RFLE].

[96] Id.

[97] See Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978) (emphasizing that courts have power over their own files).

[98] See State v. Gillispie, 181 N.E.3d 614, 622 (Ohio Ct. App. 2021).

[99] Detroit Free Press, 303 F.3d at 710.

[100] Richmond Newspapers Inc., 448 U.S. at 572.

Restricting Home-Cooked Meals: An Analysis of Kentucky's Cottage Food Laws

Restricting Home-Cooked Meals: An Analysis of Kentucky’s Cottage Food Laws

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Dalton Gregory*

Introduction

It is 2020 and the Covid-19 pandemic is in full swing. People rush to grocery stores to get the food they need for their families, but stores have place limits on how much people can buy. Many stores lack the amount of goods necessary for everyone to purchase what they need as global supply chains have been disrupted. Families struggle to get the food they need, and many go hungry until supply chains can be restored back to normal.

This is a scene too many Americans, and people all around the world, are familiar with. One North Carolina community responded by utilizing locally produced food while supply chains remained interrupted.[1] Local foods supplemented the limited supply of mass-produced foods in this scenario, which highlighted a key benefit of local produce.

Local foods provide many benefits ranging from supply benefits, illuminated during the pandemic, to health benefits. Despite these benefits, local foods are not widely available because of laws regulating food production and sale. In response to this every state has passed cottage food laws to encourage local foods and improve older laws.

Kentucky is one such state that has made improvements, but this note argues that Kentucky must further reform its current cottage food laws by lessening restrictions. Part I provides background on cottage food laws and what they are. Part II explains the benefits of cottage food laws and explains why they should be less restrictive. Part III dives into Kentucky’s current cottage food laws and its two-part classification system for regulating different cottage foods differently. Finally, Part IV provides recommendations for how Kentucky could update its cottage food laws.

I.               Background on Cottage Food Laws

Cottage food laws are laws relating to foods that are deemed to be low risk for contamination and are not considered hazardous.[2] These laws often result in less regulations on the preparation and sale of these foods because they are less hazardous.[3] States often regulate these foods differently, and even vary in what they consider to be “cottage foods.”[4] These laws promote the production and sale of non-hazardous foods by lessening the burdens of typical food regulations.[5] This promotes the production of locally grown and produced foods and allows for more direct purchases.[6] Some states also view these laws as a way to boost local economies.[7]

Cottage food laws often accomplish these goals through a variety of different means, but there are common elements. Most states limit the scope of cottage food laws to only cover non-hazardous foods.[8] States also often regulate where these foods can be sold, such as official farmers’ markets, produce stands, and grocery stores.[9] Cottage food laws may also require licenses, permits, and proper labels.[10] Finally, states often regulate the amount individuals can earn from selling cottage foods.[11] These elements are common across the country, but states still vary greatly in each.

In recent years, states across the country have been passing cottage food laws and reforming older laws.[12] Much of this recent change has been done to help promote local economies.[13] The Institute of Justice is one organization aiding in this movement by working with various states to reform and update their cottage food laws.[14] While there has been progress, there is still room for improvement in many states, including Kentucky.

II.             The Benefits of Cottage Foods

A. The Benefits to Food Security

One benefit of having stronger cottage food laws that impose less restrictions is the impact the laws could have on food security. Less restrictions on cottage foods would allow them to be sold more easily by giving customers direct access to producers. The potential benefit of having less restrictive cottage food laws would be particularly impactful for the country as in 2023, 13.5 percent of households experienced food insecurity at some point.[15]

The potential benefit of helping decrease food insecurity can also be more important during times of emergency and crisis. Global and national food supply lines can be disrupted during crises, and fewer restrictions on cottage foods can help to alleviate the harms. The Covid-19 pandemic saw this firsthand as countries and states implemented policies and restrictions to help slow the spread.[16] This impacted food supply chains across multiple sectors including finding laborers to harvest crops and shipping foods to different countries.[17] This led to increases in food insecurity as supply chains were disrupted.[18] Having easier access to locally grown and processed foods helps alleviate these disruptions to food sources seen during the recent pandemic.

B. Environmental Benefits of Cottage Foods

Promoting local produce would also have environmental benefits stemming from the potential harms of industrial agriculture. One potential environmental benefit would come from reducing the harmful effects of industrial agriculture on water sources. Large-scale industrialized agriculture often requires substantial amounts of water,[19] often relying on intricate irrigation systems that pull water from distant sources,[20] and accounts for around a third of the nation’s water use.[21] Effective cottage food laws would reduce water usage for crops as locally grown crops are typically not grown on the same scale that requires massive amounts of water.

Industrial agriculture also causes water pollution. Industrial agriculture creates runoff that enters the waterways and can have harmful effects downstream.[22] Fertilizers are overused and enter water sources, depleting oxygen.[23] Depleting oxygen in water sources causes dead zones below the surface, killing aquatic life.[24] Fertilizers can also contaminate drinking water as they often contain nitrates.[25] Nitrate infected water can create disorders in people relating to oxygen in the blood, and it is particularly harmful for pregnant women.[26] Pesticides, particularly atrazine often used for corn, also contaminate drinking water sources and can pose health risks to people.[27] While these risks of water pollution would not be completely solved, they would be reduced.

Promoting cottage foods also mitigates the harm from monocultures often seen in industrial agriculture. Industrial farming largely consists of monocultures, meaning that large amounts of one crop are grown year after year on the same ground.[28] Monoculture farming greatly hurts the topsoil and often causes the ground to erode because of the constant tilling of the ground loosening the soil and making it more susceptible to being carried away by runoff.[29] Erosion hurts the quality of the farmland as the nutrient-rich topsoil is lost over time to erosion, which will hurt farm production in future years, and erosion damages waterways as an estimated two billion tons of sediment enters waterways each year.[30] Supporting cottage foods can help to minimize erosion as local small-scale farmers may not follow the monoculture practices of large-scale industrial farming.

C. Health Benefits of Cottage Foods

In addition to the benefits to food security and the environment, promoting cottage foods could also have various health benefits. One key health benefit results from local produce not using the same harmful pesticides, herbicides, and fertilizers that are often used in industrial farming.[31] Consuming foods that contain these chemicals can cause harmful health implications, but locally grown foods do not usually contain these harmful chemicals.[32] Industrial agriculture also frequently utilizes chemical preservatives, but local produce often does not contain these chemical preservatives because it does not have to be shipped over long distances and stored as long.[33] The local nature of cottage foods typically means that it has less chemicals in it that people may consume, potentially causing harmful health effects.

Cottage foods may also be healthier because they are often fresh. Fresh foods are often more nutrient dense, and local produce can be harvested and quickly sold at peak freshness.[34] Processed foods are often “empty calorie foods” with high amounts of sugars and fats.[35] Replacing these with locally grown produce would provide more nutrients, antioxidants, and polyphenols that greatly benefit one’s health.[36] These healthy benefits to fresh produce can increase heart, blood, brain, digestion, and vision health, and cottage foods could provide these benefits.[37]

D. Economic Benefits

Reforming cottage food laws to be less restrictive can also have economic benefits. One benefit is that more produce could be sold in farmers’ markets. The number of farmers’ markets has significantly increased in Kentucky over the past thirty years.[38] Improving cottage food laws to make them less restrictive would allow more local produce to be sold at farmers’ markets, which means that consumers could buy more of their food locally. Spending locally has various economic benefits to local communities such as keeping more of the money local and creating local jobs.[39]

While farmers’ markets provide a great venue for local farmers to sell their produce, to fully recognize the economic benefits, laws will need to be changed to allow for cottage foods to be sold in more areas. Some organizations and groups argue that local food needs to be sold in grocery stores, restaurants, and schools.[40] The economic benefits would be significant because these institutions have greater purchasing power.[41]

The main economic benefit that would come from purchasing more cottage foods is what is known as the “multiplier effect.”[42] This is when initial spending increases later spending by consumers in the same community as the recipient of the initial spending then spends that money in their community.[43] Because cottage foods are often local foods, buying cottage foods means that the money goes to someone else in the community.[44] Purchasing local foods results in a multiplier effect that is two to three times greater than if that money were spent on non-local produce.[45]

Increasing cottage food supplies and sales could also boost local economies by creating more local jobs. One economist found that shifting just twenty percent of Detroit’s food spending towards local food could “create more than 4,700 new jobs” to the local area.[46] While the number of jobs created is not nearly as large in rural areas, studies have found that jobs would still be created.[47] Local producers also tend to pay higher wages, which can help local economies as these laborers have higher incomes.[48] While these economic benefits may vary with certain conditions, they still provide another reason to make cottage food laws less restrictive.[49]

Many of the benefits that come from cottage foods are because they are locally produced foods. Benefits such as food security, the environment, health, and local economies will not be uniform across the country, but states could still enjoy many of these benefits. To fully realize these benefits, many states, including Kentucky, will need to reform their cottage food laws.

III.           Kentucky’s Bifurcated Regulation System

Kentucky enacted its first cottage food law in 2003, but updated it in 2018 and then again in 2019.[50] Kentucky regulates cottage foods under a bifurcated system in which home-based processors and home-based microprocessors are subject to different regulations.[51]

A. Home-Based Processors

Under Kentucky’s bifurcated cottage food regulatory system, home-based processors are more strictly regulated on what they can sell but otherwise must follow fewer regulations than microprocessors.[52] Processors can only sell non-potentially hazardous foods, which include dried herbs, whole fruits and vegetables, jellies, bread, fruit pies, cakes,[53] maple syrup, granola, trail mix, and popcorn.[54] These restrictions notably exclude acidified foods and canned produce.[55]

Home-based processors must still meet proper packaging requirements. The food’s container must first be clean and sanitary.[56] The containers must also be properly labeled with the name and address of the processor, the name of the food, the ingredients, the net weight of the food, the date the food was processed, and the following statement: “This product is home-produced and processed.”[57] These requirements aim to inform and protect consumers.

There are also certain restrictions on where home-based processors can sell their foods. Home-based processors can only sell their foods directly to consumers, which means they can sell food from their homes, at markets, community events, roadside stands, or even by delivery.[58] This allows home-based processors to sell their produce online as long as they sell it directly to the consumer.[59] This direct-to-consumer restriction also means that home-based processors cannot sell their produce to grocery stores or restaurants.[60] These restrictions on where home-based processors can sell their food are less burdensome than some states, but they could still be reformed.

Kentucky does not require home-based processors to pass inspections before they can sell their produce.[61]  The Cabinet for Health and Family Services, however, can still inspect processing facilities annually if they choose to.[62] The Cabinet may also require inspections and testing if complaints are received or products are mislabeled.[63] If the Cabinet suspects “that an imminent health hazard exists,” the Cabinet can require the processor to stop until the hazard has been fixed.[64] These inspections and food samples are often up to the discretion of the cabinet and not actually required.

B. Home-Based Microprocessors

Kentucky’s second category of cottage food producers, home-based microprocessors, can sell a larger variety of homemade foods, but they must follow stricter regulations and restrictions on how they produce their foods.[65] Home-based microprocessors are farmers who process their own foods to sell to consumers.[66] The Secretary of the Cabinet for Health and Human Services is responsible for regulating home-based microprocessors to protect the public health.[67]

To qualify as a home-based microprocessor, the producer must be a farmer that grows the primary ingredient used in the food.[68] Farmers must apply with the Department for Public Health or the University of Kentucky Extension Service Office.[69] Applicants must provide information about the farm, the food to be produced, completion of the Food Processing School, an “established scheduled process for each food item,”[70] and pay a fifty dollar fee for certification every year.[71]

Microprocessors must also comply with multiple inspections and receive training before they begin producing their products. Applicants must attend Food Processing School, and microprocessors must have their recipes approved.[72] Finally, microprocessors must undergo facility inspections, and the Cabinet must inspect microprocessors’ facilities at least every four years.[73] Once a microprocessor becomes certified, the Cabinet may suspend or revoke the certification at any point for violations, but the microprocessor must receive notice.[74]

Home-based microprocessors are allowed to produce more food products than home-based processors. Microprocessors may produce all the foods processors produce, but microprocessors can produce additional acidified foods.[75] These acidified foods include many acid foods and acid food products, such as low-acid canned foods.[76] Producing canned foods allows microprocessors to can the foods they grow to last longer on shelves before or after it is sold to consumers.

To justify allowing microprocessors to sell these foods, the Cabinet makes them follow stricter guidelines on the facilities where the food is produced. Microprocessors must maintain a clean facility, ensuring that the kitchen area and any additional areas are sanitized.[77] Any vehicles used to transport food products and any other equipment must also be sanitized, but there are also strict restrictions on the type of equipment that can be used.[78] Microprocessors are only allowed to sell their foods directly to consumers at “farmers markets, certified roadside stands, or on the processor’s farm.”[79] This greatly restricts where microprocessors can conduct their business.

Like processors, microprocessors must properly label their produce. Microprocessors must label their products with the exact same information that processors do.[80] In addition to this, microprocessors must provide allergen information on their products.[81] Labeling requirements in Kentucky do not pose a severe burden and provide valuable information to the consumers.

Kentucky places many harsh restrictions and regulations on microprocessors compared to processors to justify allowing microprocessors to produce more foods. This small benefit does not justify these harsh regulations that discourage people from producing their own food to sell.

IV.       Reforming Kentucky’s Cottage Food Laws

While Kentucky’s current cottage food laws have made improvements on past laws, the state could still largely reform the current laws to better promote local foods and fully realize the benefits. Kentucky could improve its cottage food laws by allowing a larger variety of products to be sold, increasing the number of places where local producers can sell their goods, and decreasing the regulatory burdens that local producers have to go through. Not only would these changes benefit the local producers themselves, but people across the state and the state as a whole would benefit.

            One key area of Kentucky’s cottage food laws that needs to be reformed is in what food products local producers are allowed to sell. Processors should be permitted to sell more goods, especially those that pose little risk. One way to do this would be to allow processors to make and sell acidified food and low-acid canned goods. Processors in Kentucky should also be permitted to sell all shelf-stable foods instead of a list of approved foods. These foods pose little risk to public health, so making these adjustments would still protect public health and benefit processors.

The regulations on what foods home-based microprocessors may sell also needs to be reformed for Kentucky to fully realize the benefits of cottage foods. Microprocessors should be permitted to sell any foods that home-based processors may sell, but microprocessors should be allowed to also sell refrigerated goods and fermented foods. Microprocessors must be farmers under Kentucky law, so expanding what foods microprocessors may sell to include eggs and dairy products would increase the number of farmers who could sell their local produce. This would allow more local foods to be sold and increase the number of producers who could sell their foods.

Kentucky also needs to reform its restrictions on where local producers may sell their foods. With the emergence of online grocery orders and deliveries, local producers should not be disadvantaged by being prevented from selling their products online and delivering them. All local producers also need to be allowed to sell directly to consumers anywhere. These products already must be properly labeled as being homemade, so consumers could decide for themselves if they want to purchase these products. Kentucky’s current $60,000 sales cap also poses an undue restriction that should be eliminated. Eliminating the sales cap would allow local producers to make and sell their products without having to worry about the sales cap. This would further encourage local producers to sell as much produce as they can, increasing access to healthy food.

Reforming Kentucky’s law to allow microprocessors to sell their foods to restaurants would further increase access to local produce. Microprocessors must go through multiple trainings and receive permits, so they are already held to high standards. Kentucky should also reward microprocessors who must go through these hurdles by allowing them to sell their foods to schools. The Kentucky Department of Agriculture has already made this a clear goal by creating a program to reward schools for using local produce, so adapting Kentucky’s laws to allow microprocessors to sell to schools would help with this goal.[82] Microprocessors must be rewarded for Kentucky to reap the benefits of cottage foods, and expanding where microprocessors may sell their foods is key.

Kentucky’s regulations on receiving permits, training, and licenses also need to be changed, but many of these regulatory burdens can be justified if the rest of Kentucky’s cottage food laws are reformed. Processors do not face many regulatory burdens, so nothing needs to be changed for these local processors. Microprocessors do face many regulatory burdens, some of which are justified to ensure food is safe. One key reform is to only require microprocessors to be certified once instead of having to pay to renew their certification every year. Microprocessors should also not have to pay for each recipe they produce. Eliminating this requirement would encourage microprocessors to create more food products, leading to a larger variety of products.

Reforming Kentucky’s cottage food laws would lead to many benefits for the people of Kentucky and the state as a whole. Local producers would of course be the most obvious class of people benefited, but consumers would also benefit along with the economy and environment.

Kentucky’s public health would greatly benefit from these reforms by giving people easier access to local and healthy foods while still ensuring these foods do not pose a health risk. Local foods are often healthier,[83] so easing the restrictions on local produce would give more people access to healthy foods. Allowing local producers to sell a greater variety of foods would also give consumers access to a larger variety of healthy foods. Keeping some of Kentucky’s regulatory burdens in place would still ensure that local produce is safe for consumption, quelling one of the common criticisms of homemade foods, but reforms could still increase access to healthy foods.

Kentucky’s economy would also greatly benefit from reforming the cottage food laws, particularly the agricultural sectors. Farmers would be able to sell more of their produce to processors or use their own produce in foods as microprocessors. Farmers would have access to more outlets for their produce or turn it into final food products worth more. This is particularly important to Kentucky where farming has played an important role in the state’s economy but has been decreasing with the decline in small farms.[84] Reforming the laws would also help Kentucky’s economy by keeping more money local.[85] Cottage foods can significantly contribute to local economies, but for Kentucky to fully realize these benefits the state must reform its laws.

On top of these health benefits and economic benefits to Kentuckians, rural Kentuckians would greatly benefit by having easier access to food sources. Creating new sources for consumers to obtain food would decrease food insecurity, particularly in rural areas. Urban areas could also benefit if producers decided to sell their products in urban areas. Kentucky was the sixth hungriest state in 2022, and by reforming the cottage food laws the state would decrease food insecurity.[86]

On top of all these direct benefits that Kentucky would see by reforming its cottage food laws, the state, and nation, would see environmental benefits. These environmental benefits largely come from the local nature of cottage foods not produced with large-scale agricultural methods.[87] These local and national benefits highlight the need for Kentucky to reform its cottage food laws to allow more food products to be sold, more sales locations, and less regulatory burdens.

Conclusion

Cottage foods offer many benefits to society ranging from health benefits, economic benefits, and environmental benefits. Cottage food laws allow for people to sell these homemade foods without having to go through the normal processes and regulations that food producers face. These laws are often passed to promote local produce to capitalize on the many benefits that come with local foods. While Kentucky has cottage food laws in place, they fail to fully promote local produce. Kentucky must reform its current laws by expanding the foods that local producers may sell, allowing local producers to sell their products in more places, eliminating the sales cap on local producers, and decreasing the regulatory burdens on local producers. Adopting these changes will allow the state to fully recognize the many benefits that come with cottage foods.

* J.D. Expected 2026, University of Kentucky J. David Rosenberg College of Law; BA Political Science, The George Washington University, 2023. I want to thank the Senior Staff Editors on the Kentucky Law Journal Online for their hard work on this piece. I also want to thank Matthew Chaney for being the best Online Content Manager I could have asked for and for having to work closely with me throughout this journey. Finally, I want to thank my parents and the rest of my family for supporting me throughout law school. Without their support this note and my law school journey would not have been possible.

[1] Nathan Ham, High Country Food Hub Sees Major Increases in Customer Sales and in Food Supply from Local Farmers, High Country Press (May 13, 2020, 3:59 PM), https://www.hcpress.com/front-page/high-country-food-hub-sees-major-increases-in-customer-sales-and-in-food-supply-from-local-farmers.html [https://perma.cc/4CG6-2ANW].

[2] Jana Caracciolo & Peggy Kirk Hall, “Cottage Food” Laws, Nat’l Agric. L. Ctr., https://nationalaglawcenter.org/state-compilations/cottagefood/ [https://perma.cc/7TL4-UB43].

[3] Id.

[4] Id.

[5] Alli Condra, Cottage Food Laws in the United States 4 (Aug. 2013).

[6] Id.

[7] Id.

[8] Id. at 10.

[9] Id. at 12.

[10] Id. at 13, 16.

[11] Id. at 14.

[12] Recent State Reforms for Homemade Food Businesses, Inst. for Just., https://ij.org/legislative-advocacy/state-reforms-for-cottage-food-and-food-freedom-laws/ [https://perma.cc/8R4W-XH4R].

[13] Condra, supra note 5, at 4.

[14] Recent State Reforms for Homemade Food Business, supra note 12.

[15] Food Security in the U.S.: Key Statistics & Graphics, Econ. Rsch. Serv., (Jan. 8, 2025) https://www.ers.usda.gov/topics/food-nutrition-assistance/food-security-in-the-u-s/key-statistics-graphics/ [https://perma.cc/FX6G-3CMV].

[16] Hojatollah Kakaei, Heshmatollah Nourmoradi, Salar Bakhtiyari, Mohsen Jalilian, & Amin Mirzaei, COVID-19 and the Sustainable Development Goals 3, (Mohammad Hadi Dehghani, Rama Rao Karri, & Sharmili Roy eds., 2022).

[17] Serpil Aday & Mehmet Seckin Aday, Impact of COVID-19 on the Food Supply Chain, 4 Food Quality and Safety 167, 169–70 (2020).

[18] Ashley C. McCarthy, Emily H. Belarmino, Farryl Bertmann & Meredith T. Niles, Food Security Impacts of the COVID-19 Pandemic: Longitudinal Evidence from a Cohort of Adults in Vermont During the First Year, 14 Nutrients 1, Mar. 24, 2022, at 1, 11.

[19] Mary Jane Angelo, Corn, Carbon, and Conservation: Rethinking U.S. Agricultural Policy in a Changing Global Environment, 17 Geo. Mason L. Rev. 593, 603 (2010).

[20] Id. at 604.

[21] Id.

[22] Sarah Schindler, Food Federalism: States, Local Governments, and the Fight for Food Sovereignty, 79 Ohio St. L.J. 761, 766 (2018).

[23] Margot J. Pollans, Drinking Water Protection and Agricultural Exceptionalism, 77 Ohio St. L.J. 1195, 1209 (2016).

[24] Id.

[25] Id. at 1211.

[26] Id.

[27] Id. at 1213.

[28] Schindler, supra note 22, at 766.

[29] Angelo, supra note 19, at 606.

[30] Id.

[31] Madison McCurdy, Health Benefits of Eating Locally, Univ. of N.H. (May 17, 2022), https://extension.unh.edu/blog/2022/05/health-benefits-eating-locally [https://perma.cc/U7LS-BD5P].

[32] Id.

[33] See id.

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] Kentucky Proud Farmers’ Markets, Kentucky Proud, https://www.kyproud.com/programs/farmers-markets [https://perma.cc/4W7J-8Y7Y].

[39] See id.

[40]Oran B. Hesterman, Buying Local Makes Economic Sense, Fair Food Network https://fairfoodnetwork.org/from-the-field/buying-local-makes-economic-sense/ [https://perma.cc/CN9T-D9CY].

[41] Id.

[42] Id.

[43] Id.

[44] Id.

[45] Id.

[46] Id.

[47] Dave Swenson, The Regional Economic Development Potential and Constraints to Local Foods Development in the Midwest 1, 3 (Mar. 25, 2011), https://core.ac.uk/reader/6857680 [https://perma.cc/SSW7-DVBJ].

[48] Dave Shideler, Allie Bauman, Dawn Thilmany, & Becca B.R. Jablonski, Putting Local Food Dollars to Work: The Economic Benefits of Local Food Dollars to Workers, Farms and Communities, 33 Choices, 3rd Quarter 2018, at 1, 6.

[49] Id.

[50] House Bill 468, Community Farm Alliance, https://cfaky.org/house-bill-468/ [https://perma.cc/QNG4-BLU3].

[51] Selling Homemade Food in Kentucky, Inst. for Just., https://ij.org/issues/economic-liberty/homemade-food-seller/kentucky/ [https://perma.cc/ZL2L-9X2K].

[52] Id.

[53] Ky. Rev. Stat. Ann. § 217.015(56) (2024).

[54] 902 Ky. Admin. Regs. 45:090 § 2(1) (2025).

[55] Ky. Rev. Stat. Ann. § 217.136(2) (2024).

[56] § 217.136(1)(a).

[57] § 217.136(3).

[58] § 217.136(5).

[59] Id.

[60] Selling Homemade Food in Kentucky, supra note 51.

[61] § 217.136(6).

[62] § 217.136(7).

[63] § 217.136(8).

[64] § 217.136(9).

[65] Selling Homemade Food in Kentucky, supra note 51.

[66] Ky. Rev. Stat. Ann. § 217.015(57) (2024).

[67] § 217.137.

[68] 902 Ky. Admin. Regs. 45:090 § 5(9)(a) (2025).

[69] Id. § 4(1).

[70] Id. § 4(2).

[71] Id. § 4(6).

[72] Id. § 4(2)(f)-(g).

[73] Id. § 8(1).

[74] Id. § 9(1).

[75] Ky. Rev. Stat. Ann. § 217.015(57) (2024).

[76] Id.

[77] 902 Ky. Admin. Regs. 45:090 § 6 (2025).

[78] Id. § 5.

[79] Ky. Rev. Stat. Ann. § 217.137(2) (2024).

[80] 902 Ky. Admin. Regs. 45:090 § 4(4) (2025).

[81] Id. § 3(5)(b).

[82] Nadia Ramlagan, New Kentucky Department of Agriculture Program Aims to Boost Local Farm to School Partnerships, N. Ky. Trib. (Mar. 1, 2025), nkytribune.com/2025/03/new-kentucky-department-of-agriculture-program-aims-to-boost-local-farm-to-school-partnerships/ [https://perma.cc/LU9U-DPQ8].

[83] See supra Part II(C).

[84] Bill Estep, Number of Kentucky Farms and Farmers Shrinking, but Sales Are Record Breaking, Lexington Herald Leader (Feb. 27, 2024), https://www.kentucky.com/news/state/kentucky/article285924551.html [https://perma.cc/D3TB-ZJBE].

[85] See supra Part II(D).

[86] Top 10 Hungriest States in the U.S., Friends Comm. on Nat’l Legis. (Sep. 17, 2024), https://www.fcnl.org/updates/2024-09/top-10-hungriest-states-us [https://perma.cc/FF2J-EU6C].

[87] See supra Part II(B).

Legal Realism: Unfinished Business

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Legal Realism Unfinished Business Download

Response Piece | 107 KY. L. J. ONLINE | Volume 107

Ramsi A. Woodcock*

I. Legal Reasoning as a Renaissance Habit of Mind

The great evolutionary biologist Stephen Jay Gould devoted his last book to the relationship between science and the humanities.[1] Gould argued that the Renaissance was not the forward-looking launcher of the scientific revolution that many, inspired by the careful observations of nature in the work of Leonardo Da Vinci, believe it to be, but a backward-looking enterprise.[2] The Renaissance sought to restore the learning of the ancients rather than to advance scientific knowledge through observation of the natural world.[3] Gould gives the example of the “Historia animalium” of Ulisse Aldrovandi and Konrad Gesner, the greatest natural historians of the period.[4] That book includes chapters on the elk and the fox, but also on the unicorn and the satyr, not, as Gould is quick to point out, because Aldrovandi and Gesner necessarily thought that unicorns and satyrs exist, but because the ancients had written about those creatures.[5] The Renaissance was oriented toward ancient intellectual authority, not toward the observable world.[6] As Gould puts it, “for the Renaissance, the recovery of ancient wisdom, not the discovery of novel data, became the primary task of scholarship.”[7] Gould goes on to detail how in the seventeenth century science moved on to focus on reality.[8] The law, however, had to wait another three hundred years to make this move, and in important respects is still waiting.

The Renaissance character of legal studies is one of the most jarring aspects of legal education for American students, who, unlike law students in most other parts of the world, commence their study of law after four years of undergraduate education in other fields of intellectual endeavor.[9] The practice of law to this day is often not oriented toward the observation of reality but toward the observation of legal texts, their categorization and systematization in relation to each other, rather than in relation to the world.[10] The undergraduate major in economics of course learns mathematical models that may be horribly divorced from reality and utterly incapable of answering the pressing economic questions of the day. But the key difference between this experience and that of the law student is that the economic models learned by the undergraduate economics student are supposed to reflect reality, however badly they may in fact do that.[11] Even the undergraduate major in comparative literature, who primarily studies chains of authorial influences — can hints of Heraclitus be found in Rabelais? — engages in a course of study that is oriented toward observed fact, even if texts themselves are the subjects of observation. Either there is Heraclitus in Rabelais or there is not.

By contrast, new law students quickly find that what matters in the law is “legal argument,” the drawing of analogies to past cases, rather than argument based on observed fact, on the relationship between particular case outcomes and the world.[12] Getting the case right does not mean identifying the effects of a set of possible rulings on the nation and deciding whether those effects are desirable according to some metric, whether that metric be justice, the carrying out of the expectations of the legislature, or something else.[13] Getting the case right means finding the outcome that best fits past cases, preferably those decided by courts or judges with the greatest prestige.[14] The law in the first instance appears to the new law student not as a system to be back-tested against the world but to be back-tested against itself.[15] In order to solve cases, the law student dives into the law library, which collects reports of past court decisions, not into the university’s main library, which collects works devoted to describing the real world. Just so, the Renaissance naturalist dove into ancient manuscripts to describe the natural world, not into the nearest lake.No wonder American law students experience their first year of legal studies as exceptionally difficult and find their undergraduate performance little guide to their performance on first-year law exams. These students have spent their entire intellectual lives in the Enlightenment, excelling by showing their teachers that they have a better grasp on reality than their classmates.[16] But in law school that skill matters not at all. For some, the result is a crisis of motivation, because they have grown up associating the pursuit of reality with self-worth. For others, it is a moral crisis, as they find legal reasoning leading them to support case outcomes that they believe will be bad for the world. They are taught, however, that accepting that law and justice are two different things is key to joining the profession.[17] For still other students, the crisis is one of skills. They may have been very good at arguing from reality in their prior intellectual lives; all at once, they must learn the very different skill of arguing from authority.

The Renaissance character of legal reasoning gives new law students, and the lawyers they go on to become, unique insight into the intellectual battles of the past, albeit insight they could do without. Gould wrote of the Renaissance that “[w]e often get befuddled when we try to comprehend the central belief of the system that the Scientific Revolution hoped to replace, because [argument from authority] strikes us as so strange and archaic[.]”[18] But to the seasoned lawyer, Aldrovandi and Gesner’s approach to natural history is perfectly familiar: there is no better way to win a case than to show that a very important court said something supportive, and the greater the number of courts, and the further back in time that support can be shown to stretch, the stronger the authority still. It does not matter if the result is bad for America or the world, or something that actual legislators, not the abstract “intent of the legislature” to which courts refer in doing legal reasoning, could not possibly have wanted.[19] The fact that other cases support the outcome is enough. The sixteenth century is alive and well in the law. 

II. Legal Realism as Policymaking

For at least a hundred years now, the legal realist movement has contested the Renaissance approach to the law by insisting that legal argumentation always be reality-based.[20] The question in deciding any case, insist the legal realists, is always what those who framed the law — that is, legislators — would actually want to have happen in the particular case, or, in matters of common law, what the best result would be after taking consequences into account.[21] That is, realists want courts to do what everyone else in government already does: make policy. The term “policy” evokes armies of PhDs in subjects like sociology, environmental science, government, and, above all, economics, working for think tanks, administrative agencies, or the science departments of universities, gathering data and making recommendations about what the President or Congress should do. What the term “policy” does not invoke is the court or the law school. Policy is modern governance, in contrast to the Renaissance governance that is still the staple of the law.[22]

The fact that policy is generally associated with institutions other than the courts and law schools reflects how society has dealt with the failure of legal practice to adapt to science: by pushing the legal world aside. It is no coincidence that the rise of the legal realist movement a hundred years ago coincided with the dawn of the administrative state.[23] The legal realist movement and the movement to outflank the law with policy institutions was one and the same.[24] Legal realists wanted judges to get real, and seeing that they would not, sought to take governance outside of the realm of the courts and place it in the hands of administrative agencies staffed with people educated into reality-based intellectual disciplines, people with PhDs, not JDs.[25] The legal realists have created a policy world outside of the law that has vastly more influence today over how the country is run than do courts and their method of legal reasoning. Today federal legislation is pervasive and state statutes have greatly circumscribed the ambit of the common law, from the Uniform Commercial Code, which extracted vast swaths of commercial law from the common law power of the courts, to the more recent tort reform push to reduce the law of punitive damages to statute.[26] Indeed, the federal courts today defer to the vast majority of administrative agency decisions explicitly on the ground that the judiciary lacks the expertise to review them.[27] But this was not always so.

Nineteenth century America was ruled by courts; legislation was uncommon, narrow, and subject to searching judicial review.[28] Nowhere is the change wrought by legal realism on judicial power starker than in the mostly-forgotten history of judicial review of price regulation by administrative agencies.[29] The Supreme Court grudgingly conceded power to Congress to create price-regulating administrative agencies in Munn v. Illinois in 1877, but for more than 50 years starting in 1890 the Court insisted on supervising the prices those regulators set.[30] In case after case, the Court sought to use legal reasoning to determine whether the price of electricity, tap water, or whatever other product was before the court, met a standard of fairness that the Court found in the Due Process Clause of the U.S. Constitution.[31] After decades of withering criticism from the legal realists, however, the Court finally quit the field in 1944, conceding that price setting by precedent should give way to reality-based price setting carried out by experts — economists — trained in understanding markets.[32] Every similar retreat of the courts from constitutional review of regulatory activity over the past century has been a victory for legal realism, for the policymaker over the lawyer.[33]

But unless the administrative state succeeds at doing away with the judiciary entirely, the triumph of legal realism will be complete only if it transforms the way judges do law. In this, legal realism has had mixed success. The realists did take legal scholarship more or less by storm, convincing elite law professors that they should never push for a change in the law, or a particular resolution of a pending case, without deploying policy arguments in support.[34] Renaissance-style scholarly pursuits, such as the writing of immense treatises collating all of the cases relating to a particular branch of the law, have ceased to occupy law professors at the best schools.[35] “Law and . . . ” scholarly subfields have proliferated, as law scholars have sought to import various reality-oriented intellectual disciplines, from literature to sociology, into the law.[36]

Perhaps the most important of the “law and . . .” subfields has been law and economics, which appeared in two distinct phases.[37] The first was a project of the original group of legal realists, most notably Robert Hale, that sought to push the courts aside rather than reform them.[38] The great triumph of this first law and economics movement was convincing the Supreme Court to get out of the rate regulation business by showing how badly adapted legal reasoning was to deciding what a fair price might be.[39] The second movement, which started in the 1950s, was oriented to the internal reform task of replacing legal reasoning with reality-based economic reasoning.[40] This second iteration should probably be credited with doing more to compel law scholars to focus on results than any other single effort to open the law up to the reality-based intellectual world.[41] But its success has been limited by the shortcomings of economics as a social science. Despite its orientation toward reality, economics ignores large categories of human behavior that ought to be relevant to a scientific approach to law, because economics assumes that all economic actors are rational and have static preferences.[42] Nonetheless, every time a law professor, influenced by economics, argues that the parties to a case will contract around controlling precedent, or that a rule will distort economic incentives, the professor accepts that consequences matter, even if the professor makes no effort to undertake a careful study of those consequences.[43] Law and economics has in this way been a victory for realism.

It would be a big mistake to infer from the realist success in the realm of legal scholarship a similar triumph in legal practice. The primary currency of argumentation in the world of legal practice remains the analogy from past cases, with more legal realist approaches appearing only occasionally, and then only in the most elite courts in the most important cases.[44] Precedent continues to matter, not because it helps courts determine what the best outcome for America might be, or because the consequences of a lack of consistency in case handling would be bad for the nation — both acceptable realist approaches to precedent — but because precedent came before, just as the unicorn mattered for the Renaissance naturalist, because it came before.[45] 

III. Mossoff on Trademark

A. His Argument

It is against this backdrop of the continuing contestation of realism in the law that Mossoff’s argument that trademark is a property right must be evaluated.[46] Mossoff argues that courts and commentators have tended to deny trademark the status of property because they have failed to analogize trademarks to easements, which permit owners of real property limited access to neighbors’ land.[47] According to Mossoff, trademarks, like easements, are linked to ownership of something else.[48] For trademarks, it is ownership of the business associated with the mark in the minds of consumers.[49] For easements, it is ownership of the real property to which the easement provides access.[50] According to Mossoff, because courts rely on the contingency of easements on a property right to accord easements themselves the status of property, courts should rely on the contingency of trademarks on property in a business to accord trademarks the status of property as well.[51] 

B. The Missing Consequences

Mossoff’s paper will serve to remind realists of just how bad legal scholarship was before it embraced reality. For the paper argues a legal question over nearly forty long pages with nary a word about legal consequences, let alone what those legal consequences might mean for Americans out in the real world.[52] Treating trademarks as property based on their connection to ownership of the underlying business could suggest to courts that trademarks protect the value of consumer loyalty to that underlying business rather than serving, as the courts believe them to today, to prevent consumer confusion of brands.[53] The concept of genericide, which eliminates trademark protection when a mark like “escalator” comes to be associated by consumers with an entire product category rather than a particular brand, could disappear, for example, because genericide undoubtedly reduces the value of a firm’s mark.[54] The likely result would be greater market power for firms with successful brands, for good or ill.[55]

Mossoff wants to win this debate without any discussion of the policy consequences, of whether ironclad protection of reputation is in fact good or bad for markets. But what Americans care about is whether protecting brand loyalty is good or bad for consumers. Protecting brand loyalty might be good for consumers because it allows firms to reap rewards from investing in the production of better products. Or protecting brand loyalty might be bad for consumers because it magnifies the power of seductive advertising or the familiarity generated by having been first to market to create irrational brand attachments, leading to higher prices and harm to more-innovative but less-well-known competitors.[56] Legal realism demands that the debate over trademarks be carried out in these terms, in terms of effects. Mossoff would resolve the entire question based on an analogy to the law governing whether a farmer can use a neighbor’s field to get to the road. Because a court once said the farmer could get to the road, Mossoff would say that a trademark can never be set aside so long as it remains valuable to its owner.[57] Just so, the Renaissance scientist looked to Hesiod rather than the hills for information about the natural world. 

C. Indeterminacy

The failure of legal reasoning to take account of consequences, of which Mossoff’s paper is an example, is damning enough. But the realist critique of legal reasoning always goes further, to show that legal reasoning not only fails to take the real world into account, but cannot even provide courts with clear guidance about how to resolve cases.[58] Legal reasoning, argue the realists, is more like rhetoric than mathematics.[59] For the realist, legal reasoning lacks the determinacy of mathematics because, looked at from the right angle, anything can be analogized to anything else. Trademarks are like easements in that they are both contingent on ownership of something else, but they are also like turtles in that they both start with the letter “T.” The only way to really win an argument through legal reasoning is therefore to assume your conclusion.[60] Mossoff cannot argue that trademark is property because trademark rights happen to have a structure (existence contingent on ownership of a piece of property) that resembles the structure of some other rights that the law treats as genuine property rights. If the law does not actually say that trademark is property — and it cannot because Mossoff’s purpose is to fill that silence with his legal reasoning — then the fact that trademarks merely resemble rights that have been designated as property rights tells nothing about whether trademark rights should be treated as genuine property rights.[61] The resemblance just poses the question whether there should be a rule saying that everything that resembles a property right is a property right. If the argument is that yes, there should be such a rule, then an argument must be made for why that rule should be adopted, returning the argument more or less to where it started, which was to find a way to argue from existing law to the need for recognition of a new rule of law that resolves the question whether trademark should be treated as property.

To his credit, Mossoff’s target is an equally specious example of legal reasoning: the argument that trademark cannot be property because it does not resemble other property rights.[62] That textbook take on the relationship between trademark and property holds that trademark rights are not property because their limitation to use in conjunction with the underlying business makes them unlike basic property rights, which, on this telling, do not have any limits on use.[63] But just as resemblance cannot be used to make a property right, non-resemblance cannot be used to deny a property right. Neither resolves the question without assuming its conclusion. The fire of legal reasoning cannot be fought with the fire of more legal reasoning. The true realist approach would be to ask whether making trademarks count as property would be good for America and to proceed to treat trademarks as property if the answer is yes.

Of course, the realists’ beloved policy analysis is just as flexible, and determinate, as legal reasoning.[64] Considering the consequences of laws never actually definitively resolves the question what the correct law should be.[65] That requires the addition of a rule of decision, a value system such as human rights, or maximization of social welfare in the economic sense.[66] The position of the realists, however, is that legal reasoning is no more exact, no more determinate, than policy analysis.[67] As between two approaches that are equally open to interpretation, the realists would choose the one that is informed by reality. After a bout of legal reasoning, the lawyer ends up without an airtight argument for any particular result, plus no sense of what any particular result would mean for the country.[68] At least with legal realism, the lawyer obtains a sense of the consequences, and that in turn gives the lawyer a feeling for which outcome might be best. 

D. Confusion about Realism

Mossoff mistakenly associates the textbook case against trademark as property — the specious argument that because trademark does not resemble other property rights it cannot itself be a property right — with legal realism.[69] He sees the realists in the textbook case because he mistakenly believes that the realists define property as a plenary right of control — absolute dominion — over the owned thing, a position Mossoff associates with the phrase “right to exclude.”[70] If a right must have that plenary character in order to be a property right, then it follows immediately that the limited right to use marks that is conferred by trademark law is not a property right.[71]

But the view of property Mossoff attributes to the realists could not be more different from the realists’ actual view, because the view he attributes to the realists is the very same view that the realists attacked, and demolished, a hundred years ago.[72] Nineteenth century courts used the view of property as conferring absolute dominion over a thing to resist realist attempts to shift governance to administrative agencies.[73] The courts argued that all administrative action deprives owners of their property, in violation of the due process protection for property contained in the U.S. Constitution.[74] The view of property as absolute dominion allowed the courts to argue that when a rate regulator fixed a price for a good, for example, the owner’s property rights were violated because those rights extended to all uses of the good, including the choice of the price to charge for the good’s sale.[75] The realists fought back with the now-familiar argument that property rights are whatever the courts want them to be.[76] The courts could just as easily define property not to include a right to set the price as to define it to include a right to set the price.[77] The concept of property did not require that the courts view rate regulation as a deprivation of property. In the view of the realists, the courts were free to choose the definition of property with the best consequences for America, and in the realists’ view that was the definition that would facilitate administrative action.

The realists’ attacks on the view of property as absolute dominion is also the origin of the famous realist view of property as a bundle of rights.[78] The point of the bundle metaphor was that a regulator could break property down into pieces, take out the pieces that were preventing the regulator from operating, and then bundle the remaining pieces back together, without the bundle ceasing to add up to property.[79] A true realist would never argue that the contingency of trademark rights on ownership of the underlying business means that trademarks cannot be property because, for the realist, the contingency of the trademark right just means that the bundle of rights that is a trademark lacks a few of the sticks that make up absolute dominion over the owned thing. But, for the realist, that alone is no more reason to deny trademark the property moniker than it is to grant trademark the property moniker. 

IV. Conclusion

Mossoff can be forgiven for confusing the textbook case against trademark as property for realism because today many scholars take for granted that realism dominates scholarship.[80] It would seem to follow that the textbook view must be a realist view. The fact that the textbook view is instead of the Renaissance variety is a measure of the extent to which the legal realist project remains unfinished in the law, and scholars on both sides of the trademark debate who should know better continue to engage in legal reasoning. Despite the immense practical importance of intellectual property law, and the rich body of reality-based economic and social scientific scholarship devoted to intellectual property issues, the legal study of intellectual property law today remains perhaps more mired in the Renaissance, in Felix Cohen’s “heaven of legal concepts,” than any other area of legal scholarship.[81] The debate over whether trademark is property provides but a glimpse of the problem. But that is a story for another day. 

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[1] See Stephen Jay Gould, The Hedgehog, the Fox, and the Magister’s Pox: Mending the Gap between Science and the Humanities 1–8 (2003).

[2] Id. at 36.

[3] Id.

[4] Id. at 37.

[5] See id. at 37–38.

[6] See id.

[7] Id. at 36.

[8] See id. at 39–47.

[9] See Daniel R. Coquillette, Lawyers and Fundamental Moral Responsibility 1 (1995).

[10] The percentage of the text of court opinions that is quoted from other court opinions is a rough measure of the extent of this orientation. To choose an example at random, eleven percent of a recent Supreme Court opinion quotes directly from other legal opinions. See District of Columbia v. Wesby, 138 S. Ct. 577 (2018).

[11] See Eugene Silberberg, The Structure of Economics: A Mathematical Analysis 1–2 (2d ed. 1990).

[12] See Robert J. Fogelin & Walter Sinnott-Armstrong, Understanding Arguments: An Introduction to Informal Logic 423–25 (6th ed. 2001).

[13] See Barbara Fried, The Progressive Assault on Laissez Faire: Robert Hale and the First Law and Economics Movement 14 (1998).

[14] Fogelin & Sinnott-Armstrong, supra note 12, at 423–25.

[15] See Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809, 821 (1935) (describing legal reasoning as dealing in “theorems in an independent system” rather than statements about the world); Guido Calabresi, The Future of Law and Economics: Essays in Reform and Recollection 8 (2016).

[16] See Coquillette, supra note 9, at 1 (acknowledging the conflict between legal education and liberal arts backgrounds).

[17] See Fogelin & Sinnott-Armstrong, supra note 12, at 459.

[18] Gould, supra note 1, at 36.

[19] Cf. Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1725 (2017) (“[W]hile it is of course our job to apply faithfully the law Congress has written, it is never our job to rewrite a constitutionally valid statutory text under the banner of speculation about what Congress might have done had it faced a question that, on everyone’s account, it never faced. . . . Indeed, it is quite mistaken to assume . . . that ‘whatever’ might appear to further the statute’s primary objective must be the law.”) (internal brackets and quote marks omitted).

[20] See Peter Cane & Joanne Conaghan, Legal Realism, in The New Oxford Companion to Law (2008).

[21] See Joseph William Singer, Legal Realism Now, 76 Calif. L. Rev. 465, 467–68, 474 (1988); Fried, supra note 13, at 14. A reality-based approach to statutory interpretation seeks to answer the question what the legislature would want the court to do in the case at hand. Answering that question requires careful study of the consequences of any particular interpretation, and study of the legislature to determine how the legislature would feel – a word used here advisedly – about the outcome. What legislators happened to say during debates over passage of the law is only one datum among many that are relevant to a realistic statutory interpretation.Statutory interpretation today, however, does something quite different: it simply treats records of legislative debates as authoritative texts. See Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S. Cal. L. Rev. 845, 848–50 (1992). The detachment of this current approach from reality is evident in the fact that no court appears ever to have mentioned the offices of legislative counsel of the House and Senate of the U.S. Congress, which employ dozens of lawyers who draft the actual texts of the bills proposed by federal legislators. See Office of the Legislative Counsel, Welcome to the Office of the Legislative Counsel of the U.S. House of Representatives, https://legcounsel.house.gov/ (last visited Sept. 9, 2018). It seems reasonable to suppose that those who actually wrote the language of the laws on the books might be able to explain the intent behind key words. The fact that no court has ever seen fit to ask these bill drafters what their words were meant to convey reflects the Renaissance orientation of statutory interpretation toward texts rather than reality.

[22] Harold Berman observes that the scientific revolution brought a focus on cases and evidentiary standards to the law that reflected an interest in the empirical. See Harold Joseph Berman, Law and Revolution, II the Impact of the Protestant Reformations on the Western Legal Tradition 301 (2006). A focus on cases creates only the semblance of empiricism, however, so long as that focus is mediated by analogical reasoning from precedent.

[23] See Fried, supra note 13, at 14.

[24] See id.; Morton J. Horwitz, The Transformation of American Law, 1870-1960, at 169 (1992); Duncan Kennedy, Two Globalizations of Law & Legal Thought: 1850-1968, 36 Suffolk U. L. Rev. 631, 636 (2003).

[25] See Fried, supra note 13, at 14. A hundred years ago, the realists would in fact have been replacing LLBs, rather than JDs. The bachelor of law was the main degree awarded by law schools at the time. See J. Gordon Hylton, Why the Law Degree Is Called a J.D. and Not an LL.B., Marquette University Law School Faculty Blog, Jan. 11, 2012, https://law.marquette.edu/facultyblog/2012/01/11/why-the-law-degree-is-called-a-j-d-and-not-an-ll-b/.

[26] See Shael Herman, The Fate and the Future of Codification in America, 40 Am. J. Legal Hist. 407, 427–32 (1996); Douglas Laycock, Modern American Remedies: Cases and Materials 159–60 (4th ed. 2010).

[27] See Christopher J. Walker, Attacking Auer and Chevron Deference: A Literature Review, 16 Geo. J.L. & Pub. Pol’y 103, 105–6, 110–11 (2018).

[28] See Horwitz, supra note 24, at 220–22; Theda Skocpol & Kenneth Finegold, State Capacity and Economic Intervention in the Early New Deal, 97 Pol. Sci. Q. 255, 261 (1982).

[29] See generally Fried, supra note 13, at 160–93 (recounting this history).

[30] See Chicago, M. & St. PR Co. v. Minnesota, 134 U.S. 418, 458 (1890); Munn v. Illinois, 94 U.S. 113, 124–26 (1876); Fried, supra note 13, at 165–69, 176, 186–89; Robert L. Rabin, Federal Regulation in Historical Perspective, 38 Stan. L. Rev. 1189, 1208-09 (1986) (discussing Munn).

[31] See U.S. Const. amend. 5; Fried, supra note 13, at 175–89.

[32] See id.; Power Comm’n v. Hope Gas Co., 320 U.S. 591, 601–02 (1944).

[33] A high-water mark was reached in the 1970s, on the eve of deregulation, and since then the scope of the administrative state has contracted to a modest degree. See Richard A. Posner, The Problematics of Moral and Legal Theory 232–33 (1999);  Horwitz, supra note 24, at 230–68 (describing the reaction against regulation that started at the end of the New Deal).

[34] See Singer, supra note 21, at 503–04.

[35] See A.W.B. Simpson, The Rise and Fall of the Legal Treatise: Legal Principles and the Forms of Legal Literature, 48 U. Chi. L. Rev. 632, 677–79 (1981).

[36] See Singer, supra note 21, at 504; Charles W. Collier, The Use and Abuse of Humanistic Theory in Law: Reexamining the Assumptions of Interdisciplinary Legal Scholarship, 41 Duke L.J. 191, 201–06 (1991); Calabresi, supra note 15, at 9.

[37] See Calabresi, supra note 15, at 15–16.

[38] See Fried, supra note 13, at 14.

[39] See id. at 186–93.

[40] See Calabresi, supra note 15, at 11–16.

[41] See id. at 15–16.

[42] See Elizabeth Mensch & Alan Freeman, Efficiency and Image: Advertising as an Antitrust Issue, 1990 Duke L.J. 321, 352–53 (discussing the limits of the assumption of static preferences in the advertising context).

[43] See Singer, supra note 21, at 503–04.

[44] For a rare example of a realist court opinion, see Roe v. Wade, 410 U.S. 113, 141–62 (1972). For an example of a contemporary opinion in the legal reasoning mold, see supra note 10.

[45] Much has been made of the spread of factor tests that require judges to balance “conflicting considerations” after 1945. See Kennedy, supra note 24, at 675–76; Duncan Kennedy, A Critique of Adjudication: Fin de Siècle 147–52 (1997). Judges certainly must consider consequences in order to apply these tests properly, but the persistence of the practice of analogizing from precedents usually prevents judges from properly applying the tests. Instead of considering consequences in weighing factors, judges analogize to past applications of the factors. For example, in one recent case, the Supreme Court applied the factor test for probable cause by mimicking the outcomes of past cases having similar facts, rather than by undertaking an independent evaluation of each factor, even though the Court acknowledged that probable cause is “a fluid concept that is not readily, or even usefully, reduced to a neat set of legal rules.” See District of Columbia v. Wesby, 138 S. Ct. 577, 586–88 (2018) (internal citations omitted). All else equal, a truly realist approach would give zero weight to the fact that similar cases were decided in a particular way. The popularity of factor tests does not represent the triumph of realism in adjudication.

[46] See Adam Mossoff, Trademark as a Property Right, 107 Ky. L.J. 1, 3–5 (2018).

[47] See id. at 4–5. For the definition of easements, see Jesse Dukeminier et al., Property 767 (7th ed. 2010).

[48] See Mossoff, supra note 46, at 4.

[49] In fact, Mossoff claims that the link is to the reputation of the business, which he calls goodwill. See id. at 11–18. Trademark has traditionally been tied not to goodwill in particular, however, but to the business, or more specifically to the assets that generate the product that is associated with the mark in the minds of consumers. See Robert P. Merges et al., Intellectual Property in the New Technological Age 909–10, 963–64 (6th ed. 2012) (discussing inter alia unsupervised licensing). This response essay will proceed as if Mossoff had made the more accurate claim of a link to the business, rather than to goodwill.

[50] Actually the tie exists only for “appurtenant” easements, whereas easements “in gross” are not tied to ownership of other land. See Dukeminier et al., supra note 47, at 767.

[51] Mossoff, supra note 46, at 4.

[52] See id. at 10–11.

[53] See Merges et al., supra note 49, at 765.

[54] See id. at 795–98.

[55] Frederic M. Scherer, First Mover Advantages and Optimal Patent Protection, 40 J. Tech. Transfer 559, 570–76 (2015) (discussing the consequences of brand loyalty in the first-mover advantage context).

[56] See Merges et al., supra note 49, at 766–68.

[57] See Mossoff, supra note 46, at 24.

[58] See Fogelin & Sinnott-Armstrong, supra note 12, at 427; Fried, supra note 13, at 14; Singer, supra note 21, at 468–69.

[59] In emphasizing the indeterminacy of the law, the critical legal studies movement carried the banner of this second aspect of legal realism in the last half of the 20th century, but the movement seemed to find little value in the orientation toward consequences and reality demanded by the first aspect of legal realism. See Kennedy, supra note 45, at 339–44. Critical legal scholars tended to assume that the indeterminacy of policy analysis made realism’s focus on consequences no more valuable than legal reasoning’s focus on analogy and precedent, no less a mystification, despite realism’s orientation toward reality. See id. at 147–52.

[60] See Cohen, supra note 15, at 814, 820.

[61] See Mossoff, supra note 46, at 9–11.

[62] See id. at 7, 20–21.

[63] See Merges et al., supra note 49, at 765.

[64] See id. at 147–52.

[65] See id.

[66] See Singer, supra note 21, at 474.

[67] See id. at 473.

[68] See Cohen, supra note 15, at 821.

[69] See Mossoff, supra note 46, at 7, 20–21.

[70] See id. at 20–21.

[71] See id.

[72] See Singer, supra note 21, at 490–94; Cohen, supra note 15, at 820. What seems to have confused Mossoff in the “right to exclude” rhetoric of the realists is the realists’ position that all rights, of property or otherwise, interfere with the rights of others. See Fried, supra note 13, at 53–56. Nineteenth century courts tried to maintain that property rights are a purely private affair, distinct from government exercise of coercive power. See id. For these courts, property involved a relationship between a person and the owned thing, and nothing more. See id. at 50–51. The realists countered that property rights involve relations between people, because it is inherent in the notion of a right over something that someone else’s right over that thing must be limited in some way. See id. at 53–56. Owning land implies a right to keep others off the land, at least at some times for some reasons. See id. It follows that state guarantees of property rights amount to the use of coercive government power against some people (the non-owners) in favor of the owners. See id. Property is therefore just as much a matter of government regulation as are the administrative agencies favored by the realists, and the courts therefore cannot cast their resistance to the regulatory state as a struggle between private property and government. See id. Private property is government too.Because their antagonists considered property to be absolute dominion, realists argued that property amounts to a right to exclude everyone without limitation. But that does not mean that realists think that the right to exclude granted by property must always be total. Realists are just as happy viewing limited rights, such as trademark rights, as rights to exclude. Their position is that all rights are rights to exclude to a greater or lesser extent.

[73] See Fried, supra note 13, at 176.

[74] See id.

[75] See id.

[76] See Cohen, supra note 15, at 820.

[77] See id.

[78] See Fried, supra note 13, at 51–52.

[79] See id. at 53.

[80] See Singer, supra note 21, at 467.

[81] For an excellent example of the economic analysis of intellectual property, see Vincenzo Denicolò, Do Patents Over-Compensate Innovators?, 22 Econ. Pol’y 680, 681–99 (2007); Scherer, supra note 55, at 560–76. For a discussion of realist approaches in a leading casebook, see Merges et al., supra note 49, at 10–16. For the “heaven of legal concepts,” see Cohen, supra note 15, at 809.

Throwing the Challenge Flag on the NFL’s Collective Bargaining Agreement

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Student Note | 107 KY. L. J. ONLINE | Volume 107

Throwing the Challenge Flag on the NFL’s Collective Bargaining Agreement

Joseph T. McClure[1]

I. Introduction

The National Football League (“the NFL” or “the League”), founded in 1920 and comprising 32 teams, is the most watched and most profitable professional sports organization in the United States.[2] Each team is allowed to roster 53 players for a league total of 1,696 players.[3] In the 2016 season, the League suspended 66 players, or approximately 4 percent of all players for various violations of NFL rules.[4] From 2002 to 2009, the League suspended just 55 players total.[5] The 2016 season is not merely an anomaly; the League has suspended 297 players since 2011, the year the NFL and the NFL Players’ Association (“NFLPA”) negotiated the current Collective Bargaining Agreement (“CBA”).[6] This astonishing rise in the number of suspended players necessitates a closer look at the power the League exerts over its employees in the context of disciplinary action.

Collective bargaining agreements are negotiated commercial contracts between sophisticated parties, typically between a labor organization and an employer.[7] In the employment context, the contract governs the parties’ relationship, establishing terms and conditions of employment as well as policies and procedures for resolving disputes.[8] Collective bargaining agreements are typically governed under the National Labor Relations Act (“NLRA”).[9] Many collective bargaining agreements contain arbitration clauses to avoid litigation and reduce the costs of resolving disputes between the parties.[10] Arbitration clauses are typically governed by the Federal Arbitration Act.[11]

Other professional sports organizations often operate under similar collective bargaining agreements.[12] However, procedures for dispute resolution are drastically different in other professional sports organizations. For example, the National Basketball Association (the “NBA”) and the NBA Players’ Association (“NBAPA”) have agreed to appoint a “Grievance Arbitrator” to resolve all disputes.[13] This Grievance Arbitrator is completely independent, and appointed at the consummation of the collective bargaining agreement to serve a term that runs concurrently to the duration of the agreement.[14] The Grievance Arbitrator may be removed by notice of discharge filed by either the NBA or NBAPA, and the parties must then agree to the appointment of a replacement arbitrator.[15] If the parties are unable to agree on a replacement arbitrator, the parties must jointly request the International Institute for Conflict Prevention and Resolution (“CPR”) “or other organization(s) as the parties may agree upon” to submit to the parties eleven (11) attorneys who have no actual or apparent conflicts within the past five (5) years.[16] The parties may choose from these eleven names, or else delete five (5) of the names, and return the remaining six (6) names to the CPR Institute.[17] From the remaining six names, the CPR Institute will choose a new Grievance Arbitrator.[18] Unlike the NFL, the NBA Collective Bargaining Agreement provides clear procedures for dispute resolution, including explicit evidentiary procedures.[19] These procedures clearly provide for a discovery process, the exchange of all relevant evidence and witness lists, and require the parties to agree on a statement of the issues prior to commencement of the arbitration proceeding.[20]

Under each collective bargaining agreement negotiated by the NFL and NFLPA since 1968, the Commissioner of the NFL has retained not only the exclusive power to impose disciplinary action, but also the power to act as the arbiter for any appeal of that action.[21] As previously noted, this arrangement is extraordinary. The NFL Collective Bargaining Agreement does not provide the parties any procedural remedies to remove an arbitrator for bias or select a new arbitrator subject to agreement of both parties.[22] Additionally, the procedures defined by the NFL’s Collective Bargaining Agreement are vague, and the process for admitting and utilizing evidence is largely undefined. The combination of broad power afforded to the Commissioner, and the vague standard of dispute resolution procedures have allowed the NFL to take advantage of dispute resolution procedures to the detriment of their players. This Note seeks to examine the power of the NFL Commissioner under Article 46 of the current CBA against the backdrop of the parties’ negotiations. In addition, this Note seeks to examine recent high–profile challenges to exercises of the Commissioner’s Article 46 power in the court system, scrutinizing Article 46’s adherence to the Federal Arbitration Act (“FAA”). This Note argues that the precedent set in Brady II was incorrect, has led to at least one other incorrect decision, and empowers the NFL to continue to skirt the requirements of fundamental fairness imposed by the Federal Arbitration Act.

 II.  The NFL’s Current Collective Bargaining Agreement

Negotiations for the current CBA began in 2010, spurned largely by Commissioner Goodell’s threat to “lock out” the players if no agreement was reached by March 1, 2011.[23] The most prominent issues included player health and safety protections such as limits on “two–a–days” and offseason practices, as well as full–contact practices in both the pre–season and post season.[24] The NFLPA also focused on securing medical benefits for the players, including the creation of neuro–cognitive benefits for players with concussions and other similar football–related injuries.[25] Finally, the NFLPA negotiated for revenue sharing for the players.[26] This current CBA is effective through the 2020 NFL season.[27] Notably, negotiations did not focus on player discipline or the procedures and protections afforded to players accused of misconduct on or off the field. Statistics mentioned in the introduction illuminate the importance of player disciplinary procedures and the powers afforded to the NFL that were not considered in negotiations. [28] The 400% increase in player suspensions following the 2011 negotiations is astonishing, and it’s clearly not an event the parties contemplated in their negotiations.[29]

III. Adherence to the Federal Arbitration Act

The Federal Arbitration Act (“FAA”) was enacted by Congress to enable judicial oversight of private dispute resolution, or arbitration. Arbitrators are not bound by the formal rules of evidence and may draw on their own personal knowledge when making their awards.[30] However, Congress did not intend for arbitration to be the Wild West of dispute adjudication and resolution.[31] Section 10 provides grounds for vacating arbitration awards, including “where the arbitrators were guilty of misconduct in . . . refusing to hear evidence pertinent and material to the controversy. . . . .”[32] Courts have also recognized grounds for vacatur where the process of the arbitration denies a party “fundamental fairness.”[33] The case law that surrounds these two pillars of Section 10 is erratic, especially in regard to fundamental fairness. Evidentiary findings of the arbitration are generally not subject to review, but when the findings (or denial of process to make findings) lead to fundamental unfairness, Courts have a role in ensuring equity.[34] In other words, when the arbitrator fails to make findings of material and pertinent information, the error itself amounts to misconduct providing grounds for vacatur of the award on the grounds of fundamental fairness.[35] This is true whether the omission of material and pertinent evidence is intentional, a product of poor judgment, or by mistake; all omissions of material and pertinent evidence amount to error and open the award to judicial review.[36] The following cases illustrate cognitive dissonance in how Section 10 of the FAA operates to protect parties against fundamental unfairness in private dispute resolutions.

IV. Tom Brady

On January 18, 2015, the New England Patriots led by quarterback Tom Brady defeated the Indianapolis Colts in the American Football Conference Championship game and advanced to the Super Bowl.[37] Shortly thereafter, the NFL began an investigation into the Patriots’ use of underinflated footballs during the first half of the football game.[38] The investigation was conducted by co–lead investigators Jeff Pash and Theodore Wells (“Pash/Wells Investigation”).[39] Pash was serving as the NFL Executive Vice President as well as NFL General Counsel.[40] Wells was an attorney at the firm of Paul, Weiss, Rifkind, Wharton, & Garrison (“Paul Weiss Law Firm” or “Paul Weiss”).[41] At the conclusion of the investigation, Pash and Wells issued a report (“Wells Report”) in which they determined that “more probabl[y] than not,” Brady was “generally aware” of activities of two Patriot equipment staff members who “more probab[ly] than not” deliberately released air from the balls prior to the beginning of the AFC Championship Game.[42] Exercising the disciplinary powers of the CBA, the Commissioner handed Tom Brady a four-game suspension without pay.[43] The Commissioner also disciplined the Patriots organization by fining the team $1 million and garnishing two picks in the upcoming NFL draft.[44]

On May 14, 2015, Tom Brady appealed[45] the decision pursuant to the CBA arbitral process.[46] Pursuant to CBA Art. 46 § 2(a), Commissioner Goodell designated himself as arbitrator to hear Brady’s appeal.[47] Brady immediately made a motion seeking Goodell’s recusal, arguing among other things that the Commissioner “cannot lawfully arbitrate a matter implicating the competence and credibility of NFL staff,” and noting that in other high profile arbitrations that Goodell had publicly commented on, Goodell had recused himself (Rice[48] and Bounty–Gate[49]).[50] Brady’s motion was denied by Goodell, citing the Commissioner’s Article 46 powers to act as arbitrator at his discretion.[51] Brady made a motion to compel “all documents created, obtained, or reviewed by NFL investigators” in connection with the investigation.[52] This motion, too, was denied by Goodell, who cited to Art. 46 and asserted that it provides for “tightly circumscribed discovery and does not contemplate the production of any other documents in an Article 46 proceeding.”[53] Brady also made a motion seeking to compel testimony from NFL Executive Vice President and co–lead investigator Jeff Pash.[54] Goodell also denied this motion, arguing that as the given absence of defined scope in Article 46, it is within the Commissioner’s discretion to determine the scope of the presentations.[55] In support of this denial, Goodell stated “Pash, the NFL’s General Counsel, does not have any first–hand knowledge of the events at issue here.”[56]

On July 28, 2015, following the arbitral hearing, Goodell published a final decision finding Brady “knew about, approved of, [and] consented to” a scheme to deflate footballs prior to the AFC Championship Game.[57] (As the District Court noted, this finding “goes far beyond the ‘general awareness’ finding in the Wells Report or the disciplinary notice sent to Brady).[58]

Before the beginning of the 2015 NFL season, the Southern District of New York ordered the NFL to vacate Tom Brady’s suspension on the grounds of fundamental unfairness.[59] The Court found Goodell’s denial of Brady’s motions to compel production of documents and compel testimony of Pash violated [the Federal Arbitration Act] on the grounds of fundamental unfairness.[60] In light of its finding on these grounds, the Court did not reach a determination on Brady’s claims of evident partiality under § 10(a)(2).[61] The Court noted that its role in review of an arbitral process is limited but acknowledged the FAA allows vacatur of a decision where the arbitrator refused to hear evidence material and pertinent to the controversy, or where there is evident partiality.[62] A Court is not required to confirm an award obtained without fairness and due process.[63] The Court’s role is to review the arbitrator’s award to ensure he is effectuating the intent of the parties manifested in the collective bargaining agreement without “dispens[ing] his own brand of industrial justice.”[64]

The District Court was correct in finding the arbitrator’s denial of Pash’s testimony and the refusal to compel production of relevant documents constituted a fundamentally unfair hearing process. The Commissioner proctored no convincing reason for these denials, citing only his discretion as arbitrator under Article 46 of the CBA.[65] This exercise of discretion is insufficient in and of itself. Pash was the co–lead investigator and had access to all documents created and obtained during the course of the Pash/Wells Investigation.[66] Additionally, this information was also available to Wells. Significantly, Wells enjoyed the dual role as “independent investigator” and partner at Paul Weiss law firm, and the firm retained by the NFL for representation during the arbitration process.[67]

Given this dual role, it is inconceivable to presume the attorneys of the Paul Weiss law firm could have simultaneously fulfilled their duty to zealously represent their client in preparing for the hearing while conducting an “independent investigation.”[68] In previous arbitral proceedings involving the CBA at issue here, independent arbitrators had compelled testimony of NFL investigators despite the contention from the NFL that testimony would be cumulative or duplicative.[69] Here, without any contention as to the ways in which such testimony would be cumulative or duplicative, the District Court correctly found the Commissioner’s denial of Brady’s motion to compel testimony presented fundamental unfairness.[70]

The District Court also correctly found this denial was prejudicial to Brady and foreclosed the possibility of exploring the purported “independence” of the investigation.[71] As to the investigative files themselves, Goodell’s denial of Brady’s motion to compel production also rests on discretion alone, without any convincing substantive reason.[72] For example, Goodell asserted that “the Paul Weiss interview notes played no role in the disciplinary decisions; the Wells report was the basis for those decisions.”[73]

This statement is only barely true. While the decision was ultimately constructed from the Wells Report, the Wells Report was obviously constructed from the underlying investigative documents.[74] These investigative documents were available to the NFL throughout the arbitration, given that the Paul Weiss law firm acted as counsel retained by the NFL for both the investigation and representation purposes throughout the arbitral process.[75]

Additionally, the Commissioner attempts to argue it both ways, asserting that Article 46 sufficiently defines the discovery process, but also that its absence of clarity allows the Commissioner to exercise his discretion to make up the discovery rules out of thin air.[76] The District Court correctly recognized that absent provisions precluding the production of these documents, the arbitrator has the affirmative duty to ensure relevant documents are made available to the other party.[77] Failure to do so is a violation of fundamental fairness and thus grounds for vacating the award under §10(a)(3).[78]

Following this decision by the District Court, the League appealed, seeking vacatur of the District Court decision and reinstatement of Brady’s suspension.[79] The Circuit Court granted this appeal over a dissent, reversing and remanding the case to the District Court with instructions to confirm the arbitrator’s award.[80] This Note argues the Circuit Court’s decision  in “Brady II” is wrong and has set defective precedent in favor of the NFL in similar situations, empowering the League to exercise extraordinary unchecked power over its players in disciplinary proceedings. This Note further contends that the essence of the reasoning on which the Circuit Court relies for its decision is contrary to the requirement of the FAA to mandate fundamental fairness as an unwaivable and unmodifiable element of all arbitration agreements, regardless of the discretion granted to the arbitrator. Furthermore, the Circuit Court failed to adequately consider the implications of the conflict of interest presented by allowing one party to the dispute to act as the proverbial “judge, jury, and executioner” without regard to overarching fundamental fairness mandated by the FAA.

The Circuit Court rightly acknowledges that arbitrators appointed by a collective bargaining agreement must be allowed to effectuate the intent of the parties to resolve disputes outside the judicial system.[81] The Circuit Court astutely points out that collective bargaining agreements are the product of negotiations which reflect the priorities of the parties, and arbitrators are chosen because of their trusted judgment to “interpret and apply the agreement in accordance with . . . the various needs and desires of the parties.”[82] As discussed previously in this Note, player discipline was not a priority of either the NFL or the NFLPA at the time of the 2011 negotiations.[83] Prior to 2011, League discipline of players was rare, often inconsequential, and performed outside of the public eye.[84] The Circuit Court treats Article 46 of the CBA as if it were meticulously negotiated by the parties, resulting in a determination that the NFL should be permitted to act with plenary dictatorial power to bring accusations of misconduct, use League resources to conduct opaque investigations, and issue decrees of guilt or innocence without providing the accused with access to documents from the investigation, all in the name of providing the League with “discretion.”[85] This decision is bewildering in its result, but more troublingly, it is unsupported by sound logic and has resulted in perpetual harm.

The Circuit Court held that the Commissioner’s decision to exclude the testimony of Pash did not raise questions of fundamental fairness, and denial of the production of documents is not a grounds for vacatur of the award because the CBA did not require the exchange of such notes.[86] In these holdings, the Circuit Court ignores the obvious conflicts of interest presented by the Commissioner’s refusal to recuse himself and the retainer of the Paul Weiss law firm as both investigator and representative counsel.

The Circuit Court reasons that arbitrators do not need to comply with strict evidentiary rules and retain discretion to admit or exclude evidence.[87] This is certainly true, but the testimony of a lead investigator is undeniably pertinent and material to the controversy, and thus exclusion is grounds for vacation of an award.[88] While the arbitrator does not have to follow the Federal Rules of Evidence, common sense notions of fundamental fairness suggest the need to include testimony from a lead investigator. Instead, the Circuit Court suggests that pursuant to the parties’ bargain, the CBA would theoretically allow the Commissioner to impose punishment, then uphold his own decision on appeal without any investigation or hearing any evidence because this is what the parties must have intended by giving the Commissioner broad authority to regulate procedural matters.[89] The arbitrator’s discretion is bound by the intent of the parties in the collective bargaining agreement, and it cannot be argued in good faith that the NFLPA would have intentionally awarded the Commissioner with this sort of dictatorial disciplinary power.

As to the Commissioner’s denial of Brady’s motion to compel production of investigative documents, the Circuit Court reasons that because the CBA does not provide procedural rules for discovery, the discretion of the Commissioner is absolutely controlling.[90] This is incorrect. In the absence of procedures, the Commissioner is bound by fundamental fairness in exercising discretion and must effectuate the intent of the parties.[91] The Circuit Court reasons that the parties intentionally excluded discovery procedures because elsewhere in the CBA, a proceeding allows for “reasonable and expedited discovery . . . .”[92] This argument is flawed. The difference in language between Art. 15 § 3 – 

. . . Arbitrator shall grant reasonable and expedited discovery upon the application of any party where, and to the extent, he determines it is reasonable to do so. Such discovery may include the production of documents and the taking of depositions. 

(emphasis added), and Art. 46 (“the parties shall exchange copies of any exhibits upon which they intend to rely”) is merely semantics.[93] Both provisions contemplate that opposing parties should be allowed to request documents from their adversary. Both provisions also allow collection and presentation of material and pertinent documents from third parties. For the Commissioner to deny Brady’s request presents fundamental unfairness, but the Circuit Court props up this ridiculous assertion by concluding that the Commissioner was simply applying the CBA as written.[94] (How can a provision purported to be intentionally excluded also be interpreted as written? The author remains puzzled.)

 V. Ezekiel Elliott

In July 2016, Dallas Cowboys running back Ezekiel Elliot was investigated by Ohio law enforcement concerning allegations of domestic violence.[95] More than a year later, in August of 2017, the Columbus City Attorney’s Office issued a statement that it would not press charges against Elliott because of “conflicting and inconsistent information.”[96] However, the NFL initiated its own investigation, tapping Kia Roberts and Lisa Friel to lead the investigation and prepare a report (“Elliott Report”).[97] After reviewing the Elliott Report, the Commissioner imposed on Elliott a six–game suspension pursuant to the League’s Personal Conduct Policy.[98] Elliott and the NFLPA appealed.[99] During the appeal, the NFLPA compelled testimony from Roberts.[100] This testimony highlighted Roberts’ conclusions that Elliott’s accuser was not credible and had provided inconsistent statements, yet Roberts had been excluded from a meeting with Goodell, Friel, and outside advisors when the decision to suspend Elliott was finalized.[101] The NFLPA sought to compel testimony to determine whether key evidence and critical facts had been concealed from decision–makers, but the arbitrator denied this request.[102]

On September 1, 2017 (the day following the arbitrator’s announcement that a decision was forthcoming), the NFLPA and Elliott sued the NFL seeking vacatur of the impending decision and a temporary restraining order (or preliminary injunction).[103] The action was commenced in the Eastern District of Texas.[104] On September 5, 2017, the arbitrator issued his decision confirming the Commissioner’s six–game suspension, and the NFL filed suit in the Southern District of New York seeking confirmation of the award.[105] The motivation behind these dueling lawsuits is Brady II, as the NFL sought to take advantage of a particular favorable decision, and the NFLPA sought to avoid it. With the advantage of knowing exactly when the decision would be issued, the NFL would always be able to obtain their preferred venue.

In ruling on the NFLPA’s motion for a temporary restraining order (and preliminary injunction) which would stay the suspension, the Texas District Court noted the “unique and egregious facts, necessitating court intervention.”[106] The District Court based its concern on the FAA, citing to fundamental unfairness as a reason for intervening into otherwise bargained–for arbitration.[107] In an opinion eerily similar to that of the court in Brady I, the District Court raised concerns that the arbitration process had denied the admission of key witness testimony and documents, and such denial amounted to serious misconduct by the arbitrator.[108] Namely, the District Court expressed concern that certain conclusions of Roberts were excluded from the Elliott Report (namely that Elliott’s accuser’s allegations were not credible), despite Roberts sharing these conclusions with Friel.[109] In fact, Friel colluded with counsel for the NFL and jointly made the decision to exclude Roberts’ conclusions from the report and from further discussions with the Commissioner regarding discipline.[110] Moreover, these conclusions were suppressed until the arbitration hearing itself, and the District Court found that if the NFL had succeeded in its overall goal, Roberts’ conclusions would still be concealed from Elliott and the NFLPA.[111]

Given this suppression, the District Court concluded the arbitrator’s denial to compel testimony from Goodell regarding his knowledge of Roberts’ conclusions presented gross error and resulted in a fundamentally unfair hearing.[112] The District Court noted the decisions of Brady I and Brady II, stating, “the circumstances of this case are unmatched by any case this Court has seen.”[113] Seemingly, the Court noted the NFL’s willingness to stretch the boundaries of fundamental fairness in its arbitration process even further than the Second Circuit was willing to overlook.[114] The Court noted that fundamental unfairness infected Elliott’s appeal from the beginning, and “[a]t every turn, Elliott and the NFLPA were denied the evidence or witnesses needed to meet their burden.”[115] On September 8, 2017, the District Court granted the motion for temporary restraining order and preliminary injunction enjoining the arbitrator’s decision, thus effectively lifting the suspension pending a final ruling on the merits.[116]

The NFL appealed to the Fifth Circuit, arguing that because the NFLPA’s petition was filed before a final arbitration decision had been issued, the District Court lacked subject matter jurisdiction and the lawsuit was premature.[117] Over a dissent, the Circuit Court agreed with the NFL, vacating and remanding with instructions to dismiss the case for lack of subject matter jurisdiction.[118] The dissent acknowledged that the integrity of the arbitration process had been impugned by the NFL’s suppression of information during the arbitration process.[119] However, with this dismissal, litigation could only continue in the Southern District of New York, bound by the misguided precedent of Brady II.

The Southern District of New York first issued an opinion on October 17, 2017, maintaining the status quo and preserving the temporary restraining order to stay Elliott’s suspension.[120] The short opinion issued by Judge Crotty (a “Part I” substitute judge) granted the TRO and deferred consideration of the preliminary injunction to Judge Failla (who was on vacation at the time). In this short opinion, Judge Crotty noted Elliott and the NFLPA were “deprived of opportunities to explore pertinent and material evidence,” and refused to accept the NFL’s argument that because of Brady II, the NFLPA is foreclosed from making a fundamental fairness argument to attack the arbitrator’s award.[121]

Judge Failla held a hearing and issued an opinion on October 30, 2017.[122] The decision found the arbitration proceedings in accordance with the CBA and fundamental fairness, and denied the NFLPA’s motion for a preliminary injunction.[123] The opinion relied heavily on the Brady II decision, similarly finding that despite withholding key evidence and witnesses, the arbitration process was fundamentally fair.[124] Specifically, the Court declined to find that the suppression of Roberts’ exculpatory conclusions amounted to clear error resulting in fundamental unfairness.[125] Furthermore, the Court affirmed the fairness of the arbitrator’s decision not to compel testimony of Goodell as to whether he had been made aware of Roberts’ conclusions.[126] In reliance on these decisions, the Court explicitly points to the Brady II precedent, finding that in Brady II, the NFLPA’s request for interview notes was comparable to this case.[127] On emergency appeal to the Second Circuit, the NFLPA’s petition was summarily denied, the case was effectively dead, and Ezekiel Elliott was effectively suspended based on sketchy evidence and suppressed testimony.[128]

 VI. NFL Commissioner as Judge, Jury, and Executioner

As highlighted in the cases of Tom Brady and Ezekiel Elliott, the Second Circuit has produced a precedent that incorrectly and inequitably interprets the “fundamental fairness” requirement of the FAA and its application to NFL Collective Bargaining Agreement. The decision in Brady II is rooted in the idea that the NFLPA and the NFL negotiated disciplinary appeal procedures at arm’s length and could fully appreciate the impact the negotiations would have on the League and its players over the next decade. This was simply false, as the empirical data shows, and without a crystal ball, disciplinary action appellate procedure was simply not a priority for the NFLPA or the NFL. In the absence of intent to contract for a grant of unilateral power to the NFL Commissioner to act as prosecutor, judge, jury, and executioner, Courts should lean more heavily on ideas of fundamental fairness. Courts should be exceptionally skeptical in light of the arbitration procedures (or lack thereof) that effectively grant the NFL, a party in the supposed neutral arbitration, the power to control the information provided to the player–appellees and ultimately, the evidence available to be presented during the arbitration hearing.

One court has made this logical leap, holding a standard provision in NFL contracts designating the Commissioner (or his assignee) as arbitrator is unconscionable and thus, unenforceable.[129] In a case in front of the Missouri Supreme Court, a former employee of the St. Louis Rams successfully established that allowing the Commissioner of the NFL to arbitrate disputes of NFL policy constituted an unconscionable contract term.[130] The Court agreed that because the Commissioner is an employee of the League, acting as sole arbitrator is unconscionable where the Commissioner is given “unfettered discretion to establish the rules for arbitration,” rendering the provision unenforceable.[131] While the author acknowledges there is a difference in a dispute between team management and employees, and a dispute between players and the league, the principles and underlying conflicts are not dissimilar. This part of the decision from the Missouri Supreme Court is not difficult to accept or justify: parties to the dispute cannot also act as impartial arbitrators! When the arbitrator is not impartial, the integrity and neutrality of the proceedings have been impugned, and a presumption of “fundamental unfairness” is created. This comports with common sense. Viewed without cynicism, in the event of disciplinary appeals, Article 46 of the CBA requires an interested party to promulgate procedural rules without contractual framework and unrestrained from precedent. Additionally, Article 46 requires the Commissioner to put aside his interests and make a decision as the sole arbitrator, presiding over the issue of whether to overturn his own previous decision. The full extent of issues was not addressed by the Court in Brady I, as the case was decided on other grounds. But the Second Circuit’s decision to overturn the District Court and uphold the arbitration award without addressing the root of the fundamental unfairness poisoned the well for future NFL players–turned–litigants who have received kangaroo–court justice through the NFL’s arbitration procedures.

VII. What’s Next?

            The NFL’s collective bargaining agreement has been widely decried in national sports media. The NFLPA has called the process “a sham and a lie” and called for the NFL Management Council to step in and reevaluate the process moving forward.[132] However, the bottom line is that both the NFL and the NFLPA are stuck in this agreement until 2020 barring extraordinary circumstances. Given this unfortunate reality, it is worth examining other successful collective bargaining agreements and proposing a suggested structure for the next negotiated agreement between the NFL and NFLPA. In closing, this Note seeks to propose revising Article 46 of the NFL CBA in the following ways.

As part of the terms for the 2020 Collective Bargaining Agreement, the NFL and the NFLPA should stipulate to the appointment of a single arbitrator for all off–field player conduct disciplinary appeals to serve a term equal to the duration of the Collective Bargaining Agreement. The Commissioner of the league currently has the power to impose discipline for off–field conduct detrimental to the League, and that power should remain vested with the Commissioner. All appeals of his disciplinary decisions should be heard by a single arbitrator in the interests of uniform decision–making and consistency of dispute resolution. Without cause, the parties should have the option to remove the arbitrator by simple notice and replace the arbitrator from a list of eleven (11) candidates stipulated by the parties at the consummation of the collective bargaining agreement. Should the parties not agree as to the selection of the replacement arbitrator, the parties should be allowed to strike eight (8) names from the stipulated list and allow a pre–determined designated representative select from the remaining three (3) names. While the parties would retain the option to remove the arbitrator at–will, the power to remove should be limited only to future appeals. The parties would not have the power to remove the arbitrator from any appeals processes that had already been initiated by filing notice of such appeal.Finally, instead of adopting their own half–measure procedures for arbitration, the parties should stipulate that proceedings must follow an established framework for arbitration. The parties should adopt the procedures from the American Arbitration Association. Established procedures will further enhance the credibility of the proceedings in the eyes of the fans, players, and the League stakeholders. Furthermore, adoption of established procedures decreases the risk of misconduct or injustice in the arbitration proceedings.

VIII. Conclusion

The purpose of collective bargaining agreements is to ensure a balance of power between labor organizations and employers. In the context of professional sports, collective bargaining agreements ensure the players are adequately represented and are given the opportunity to preserve a balance of power with their governing organizations.

The CBA between the National Football League and the NFLPA is flawed because it doesn’t accurately capture either of the parties’ intent to create disciplinary procedures. This flaw results from a lack of information or motivation to negotiate such terms, given the relatively few player suspensions imposed prior to 2011. However, the Second Circuit’s decision in Brady II has given the Commissioner of the NFL broad dictatorial powers to perform a range of investigative and adjudicative roles within the player disciplinary process. This decision was incorrect and misinterprets the role of the “fundamental fairness” requirement of the FAA. This decision created broad and binding precedent and is used as a weapon by the NFL to avoid consequences for unfair adjudicatory processes. If allowed to proceed in another Circuit court, players may be able to impose a check on this power. However, given the mismatch of information availability, the NFL will always have the first–mover advantage in choice of venue. Finding no fundamental unfairness in a process which conceals material and pertinent information from the accused and allows the arbitrator to effectively act as judge, jury, and executioner requires a suspension of common sense. The Second Circuit should revisit the decision in Brady II and either qualify or overturn this decision in the interests of fundamental fairness.

In the process of negotiating the 2020 Collective Bargaining Agreement, the NFL and NFLPA should revisit Article 46 and implement several changes to increase the validity and credibility of appeals proceedings. The parties should stipulate to an unconflicted arbitrator who serves a defined term and may be removed at–will at the request of either party. Furthermore, the parties should adopt recognized framework for all arbitration proceedings. The aforementioned steps would serve to increase the credibility of the appeals process in the eyes of the fans, players, and League stakeholders and lead to fewer disputes requiring resolution in the courts.  

---

[1] J.D. Candidate May 2019.

[2] Statista, National Football League (NFL) – Statistics and Facts, https://www.statista.com/topics/ 963/national–football–league/ (last visited Jan. 2, 2019); Jim Norman, Football Still Americans’ Favorite Sport to Watch, Gallup (Jan. 4, 2018)https://news.gallup.com/poll/224864/football–americans–favorite–sport–watch.aspx.

[3] NFL Collective Bargaining Agreement 145 (2011).

[4] NFL Fines & Suspensions, Spotrac, https://www.spotrac.com/nfl/fines-suspensions/2016/ (last visited Jan. 2, 2019).

[5] NFL Fines & Suspensions, Spotrac, http://www.spotrac.com/nfl/fines–suspensions/ (last visited Jan 2, 2019) (follow hyperlink; change your “viewing” year to the specific year you desire to view and change your select type to suspensions).

[6] Id.

[7] Cornell Law School, Collective Bargaining, https://www.law.cornell.edu/wex/collective_ bargaining (last visited Jan. 2, 2019).

[8] Id.

[9] See 29 U.S.C.S. § 151 (2018).

[10] Lynne MacDonald, What Are the Benefits of Employment Arbitration?, Chron, https://smallbusiness.  chron.com/benefits-employment-arbitration-14693.html (last visited Jan. 2, 2019).

[11] See 9 U.S.C.S. § 1, 3 (2018).

[12] Compare NBA – NBPA Collective Bargaining Agreement (2017), and MLB Collective Bargaining Agreement (2012).

[13] See, NBA Collective Bargaining Agreement 399 (2017).

[14] Id.

[15] Id. at 399–400.

[16] Id.

[17] Id.

[18] Id.

[19] See id. at 397–98.

[20] Id.

[21] Mike Florio, Commissioner’s power under Article 46 has been present since the first CBA, NBC Sports (May 17, 2015, 7:18PM), https://profootballtalk.nbcsports.com/2015/05/17/commissioners-power-under-article-46-has-been-present-since-the-first-cba/.

[22] NFL Collective Bargaining Agreement 113–15; 117–18 (2011).

[23] NFL locks out players, who file suit, ESPN (Mar. 12, 2011), http://www.espn.com/nfl/ news/story?id=6205936 [hereinafter “NFL Lockout”].

[24] Nate Davis, NFL, players announce new 10–year labor agreement, USA Today (July 25, 2011), http://content.usatoday.com/communities/thehuddle/post/2011/07/reports-nfl-players-agree-to-new-collective-bargaining-agreement/1#.XC0IZyOZPBI.

[25] Id.; Former Players Receive New Neuro–Cognitive Disability Benefit, NFLPA (Dec. 7, 2012), https://www.nflpa.com/news/all–news/former–players–receive–new–neuro–cognitive–benefit.

[26] Gregg Rosenthal, The CBA in a nutshell, Pro Football Talk (July 25, 2011, 2:03 PM), https://profootballtalk.nbcsports.com/2011/07/25/the–cba–in–a–nutshell/.

[27] NFL Players Association, Collective Bargaining Agreement 1 (2011).

[28] See supra footnotes 1–6 and accompanying text.

[29] See supra footnotes 4–6 and accompanying text.

[30] Bernhardt v. Polygraphic Co. of America, 350 US 198, 203 (1956).

[31] 9 U.S.C. § 10 (2012).

[32] Id.

[33] Tempo Shain Corp. v. Bertek, Inc., 120 F.3d 16, 20 (2d Cir. 1997).

[34] See Areca, Inc. v. Oppenheimer & Co., Inc., 960 F. Supp. 52, 54–55 (S.D.N.Y. 1997).

[35] See Shamah v. Schweiger, 21 F. Supp. 2d 208, 214 (E.D.N.Y. 1998).

[36] See generally, Bell Aerospace Co. Div. of Textron v. Local 516, 500 F.2d 921, 923 (1974) (examining the mishandling of evidence not through the lens of intent but through the ultimate impact on the arbitration); Hoteles Condado Beach v. Union de Tronquistas Local 901, 763 F.2d 34, 39–40­ (1st Cir. 1985) (examining the weight given to evidence based upon the prejudice shown to the parties, not through motive); Teamsters, Local Union 657 v. Stanley Structures, Inc., 735 F.2d 903, 906 (5th Cir. 1984) (commenting that courts are restricted when looking at arbitration proceedings to examine whether that proceeding was fundamentally unfair); Transit Cas. Co. v. Trenwick Reinsurance Co., 659 F. Supp. 1346, 1354–1355 (S.D.N.Y. 1987) (determining whether the arbitrator either was guilty of misconduct or had manifest disregard for the law).

[37] Colts vs. Patriots – Game Summary, January 18, 2015, ESPN, http://www.espn.com/nfl/game?  gameId=400749520 (last visited Jan. 2, 2019).

[38] NFL investigation of balls in AFC title game led by Pash, Wells, NFL (Jan. 23, 2015, 1:56 PM), http://www.nfl.com/news/story/0ap3000000462476/article/nfl-investigation-of-balls-in-afc-title-game-led-by-pash-wells (hereinafter “NFL investigation of balls”).

[39] Id.

[41]NFL investigation of balls supra note 38; Ben Protess, Report’s Author Is Former Football Player Known Best as Trial Lawyer, NY Times (May 6, 2015), https://www.nytimes.com/2015/05/07/ sports/football/ted-wells-reports-author-is-former-football-player-known-best-as-trial-lawyer.html.

[42] Paul, Weiss, Rifkind, Wharton & Garrison LLP, Investigative Report Concerning Footballs Used During The Afc Championship Game On January 18, 2015 (2015), https://www.documentcloud.org/documents/2073728-ted-wells-report-deflategate.html.

[43] Troy Vincent’s Letter to Tom Brady, ESPN (May 12, 2015),  http://www.espn.com/nfl/story/_/id/ 12873455/troy–vincent–letter–tom–brady.

[44] NFL releases statement on Patriots’ violations, NFL (May 11, 2015, 8:48 PM), http://www.nfl.com/news/story/0ap3000000492190/article/nfl-releases-statement-on-patriots-violations.

[45] NFL Mgmt. Council v. NFL Players Ass’n (Brady I), 125 F.Supp.3d 449 at 457 (S.D.N.Y. 2015).

[46] The arbitral process is only vaguely defined in the NFL’s CBA. See NFL Collective Bargaining Agreement, supra note 22 at 187. Essentially, the Commissioner issues a punishment, then the player may appeal by writing to the Commissioner. After receiving the writing, the Commissioner has the discretion to designate himself as the arbitrator, or alternatively, appoint a hearing officer.

[47] Id. at 204–05.

[48] Ray Rice was suspended for an incident involving domestic violence in 2014. Video of the assault garnered widespread national media attention. See Ray Rice Suspended 2 Games, ESPN (July 24, 2014), http://www.espn.com/nfl/story/_/id/11257692/ray-rice-baltimore-ravens-suspended-2-games.

[49] In 2012 the NFL concluded an investigation into the New Orleans Saints, finding the Saints’ organization had designed a system of financial incentives for hard hits and inflicting injuries on opposing players. See Saints Bounty Scandal, ESPN: NFL Topics, http://www.espn.com/nfl/topics/_/page/new-orleans-saints-bounty-scandal (last updated Feb. 26, 2013).

[50]Brady I, 125 F.Supp.3d 449, 458 (S.D.N.Y. 2015).

[51] Id. at 457–58.

[52] Id. at 458.

[53] Id. at 459.

[54] Id. at 458.

[55] Id. at 459–60.

[56] Id. at 460.

[57] Id. at 460–61.

[58] Id. at 461.

[59] Id. at 474.

[60] Id. at 462–63.

[61] Id. at 473–74.

[62] Id. at 462.

[63] Id.

[64] See Alexander v. Gardner-Denver Co., 415 U.S. 36, 52 (1974); Steelworkers v. Enterprise Car, 363 U.S. 593, 596–97 (1960); 187 Concourse Assocs. v. Fishman, 399 F.3d 524, 527 (2d Cir. 2005).

[65] Brady I, 125 F.Supp.3d at 459–60.

[66] Id. at 470.

[67] Id. at 472–73.

[68] Id.

[69] Id. at 471–72.

[70] Id.

[71] Id. at 472.

[72] See id.

[73] Id.

[74] Id. at 473.

[75] Id. at 472.

[76] Compare Brady I, 125 F.Supp.3d at 459 (Goodell cites Art. 46 in asserting “the collective bargaining agreement provides for tightly circumscribed discovery” to support denial of motion to compel production of documents), with Brady I, 125 F.Supp.3d at 459–60 (admitting that Article 46 does not provide guidance for basic discovery such as witness testimony thus the arbitrator retains discretion to admit or deny motions sua sponte).

[77] Id. at 473.

[78] Id. at 472–73.

[79] NFL Mgmt. Council v. NFL Players Ass’n (Brady II), 820 F.3d 527, 531–32 (2nd Cir. 2016).

[80] Id. at 548–49.

[81] Id. at 536.

[82] Id.

[83] See supra footnotes 1–29 and accompanying text.

[84] See supra footnotes 23–29 and accompanying text.

[85] Brady II, 820 F.3d 527 at 539.

[86] Id. at 545–46.

[87] See id. at 546–47.

[88]  See 9 U.S.C. § 10(a)(3) (2012).

[89] Brady II, 820 F.3d at 546, 548.

[90] Id. at 546–47.

[91] Alexander v. Gardner-Denver Co., 415 U.S. 36, 53 (1974); 187 Concourse Assocs. v. Fishman, 399 F.3d 524, 527 (2d Cir. 2005); see also United Steelworkers of Am. v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597 (1960).

[92] Brady II, 820 F.3d at 546.

[93] NFL Collective Bargaining Agreement, supra note 22 at 113, 205.

[94] Brady II, 820 F.3d at 546–47.

[95] NFL Players Ass'n v. NFL (Zeke I), 270 F. Supp. 3d 939, 944 (E.D. Tex. Sep. 8, 2017).

[96] Id.

[97] Id.

[98] Id.

[99] Id.

[100] Id. at 945.

[101] Id.

[102] Id.

[103] Id.

[104] Id. at 939.

[105] Zeke I, 270 F. Supp. 3d at 945; NFL Mgmt. Council v. NFL Players Ass’n (Zeke IV), No. 17-cv-06761-KPF, 2017 U.S. Dist. LEXIS 171995 at *2 (S.D.N.Y Oct. 17, 2017).

[106] Zeke I, 270 F. Supp. 3d at 951.

[107] Id.

[108] Id.

[109] Id. at 951–54.

[110] Id. at 951–53.

[111] Id. at 952–53.

[112] Id. at 953.

[113] Id. at 953.

[114] See id. at 953–54.

[115] Id. at 954.

[116] Id. at 955.

[117] NFL Players Ass’n v. NFL (Zeke III), 874 F.3d 222, 231 (5th Cir. 2017).

[118] Id. at 229.

[119] Id. at 234.

[120] Zeke IV, 2017 U.S. Dist. LEXIS 171995, at *6.

[121] Id. at *5–6.

[122] NFL Mgmt. Council v. NFL Players Ass’n (Zeke V), 2017 U.S. Dist. LEXIS 179714, at *1 (S.D.N.Y. Oct. 30, 2017).

[123] Id. at *3.

[124] Id. at *22–25.

[125] Id.

[126] Id. at *24.

[127] Id. at *20.

[128] Around the NFL Staff, Ezekiel Elliott Suspension Back; Court Denies Injunction, NFL (Nov. 9, 2017, 3:41 PM), http://www.nfl.com/news/story/0ap3000000874433/article/ezekiel-elliott-suspension-back-court-denies-injunction.

[129] State ex rel. Hewitt v. Kerr, 461 S.W.3d 798, 803 (Mo. 2015).

[130] Id. at 803.

[131] Id.

[132] NFLPA Statement on NFL Disciplinary Process, NFLPA https://www.nflpa.com/news/ezekiel-elliott-disciplinary-process, (last visited Jan 2, 2019).

“Please Unlock Your Phone”: Why Reasonable Suspicion Should Be Extended to Cursory Searches of Electronic Devices at the Border

Download a copy of this Note:

Please Unlock Your Phone- Why Reasonable Suspicion Should Be Extended to Cursory Searches of Electronic Devices at the Border Download

Student Note | 107 KY. L. J. ONLINE | Volume 107

“Please Unlock Your Phone”: Why Reasonable Suspicion Should Be Extended to Cursory Searches of Electronic Devices at the Border

Will Carroll[1] 

“It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology.”[2]

 I. Introduction

It is well established that the primary function of the Bill of Rights is to preserve essential liberties for citizens of the United States.[3] Cornerstone rights such as freedom of speech derive directly from the first ten amendments.[4] The protection of citizens from unreasonable searches and seizures by government agents also originates from the Bill of Rights.[5] The Fourth Amendment establishes: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.[6]As one scholar noted, the Fourth Amendment “makes plain, perhaps more than any other provision of the Bill of Rights, that the Constitution does not tolerate the tactics of a police state.”[7] Unfortunately, U.S. border agents act with impunity, employing totalitarian, police state tactics by performing unconstitutional searches and seizures on a daily basis.[8] Although the right to be secure against unreasonable government intrusion is a vital freedom enjoyed by American citizens on the interior of the country, its sanctity is being violated at the border in an area dubbed the “Constitution-free zone.”[9]Traditionally, border searches are exempt from Fourth Amendment protections in a doctrine known fittingly as the border search exception.[10] This exception exists “pursuant to the long-standing right of the sovereign to protect itself by stopping and examining persons and property crossing into [the U.S.]” and is “reasonable simply by virtue of the fact that [the searches] occur at the border.”[11] In order to keep pace with rapidly advancing technology, some federal courts have explicitly extended the exception to electronic devices, holding that “reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border.”[12] This is particularly concerning because in today’s world, smartphones, tablets, and laptops have rapidly shifted from a luxury to a daily necessity.[13] The Supreme Court recognized that “modern cell phones . . . are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”[14]The practice of searching electronic devices at the border has raised serious Constitutional concerns.[15] Statistics for the 2017 calendar year released by the U.S. Customs and Border Protection (“CBP”) show that 30,200 international travelers, both inbound and outbound, were subjected to electronic device searches.[16] This is roughly a 37% increase from 2016.[17] CBP insists that “the need for border searches of electronic devices is driven by [their] mission to protect the American people and enforce the nation’s laws in this digital age.”[18] Many disagree with these border searches, and in September 2017, the American Civil Liberties Union (“ACLU”) filed a lawsuit in federal court “on behalf of 11 travelers whose smartphones and laptops were searched without warrants at the U.S. border.”[19] The ACLU’s position is that Fourth Amendment protections should extend to border searches, “especially when it comes to electronic devices like smartphones and laptops.”[20]The most recent development in border search exception precedent was decided by the Ninth Circuit in United States v. Cotterman.[21] In Cotterman, the court ruled that a forensic search of electronic devices at the border requires reasonable suspicion.[22] Forensic examination of computers is “a powerful tool capable of unlocking password-protected files, restoring deleted material, and retrieving images viewed on web sites.”[23] While this decision is certainly a step in the right direction, it fails to address the problem of unwarranted cursory searches of electronic devices. A cursory search, or “basic search” according to CBP, is any search that does not require “external equipment, through a wired or wireless connection, to an electronic device not merely to gain access to the device, but to review, copy, and/or analyze its contents.”[24] Cursory searches expose your electronic device’s texts, emails, photos, internet history, and other personal information. This Note will argue that the reasonable suspicion standard currently applied to investigative searches of electronic devices at the border should be extended to cursory searches due to the clear violation of digital privacy and Fourth Amendment protections against unreasonable searches and seizures.Part II of this Note will discuss basic Fourth Amendment principles and the origins of the border search exception with accompanying case law. Part III will unpack the Ninth Circuit’s en banc decision in United States v. Cotterman and analyze the current situation of the border search exception. Part IV will illustrate arguments against extending reasonable suspicion to cursory searches of electronic devices at the border while presenting rebuttals to each of those arguments. Specifically, this Note argues that, in United States v. Cotterman, the Ninth Circuit should have extended the reasonable suspicion standard to cursory searches of electronic devices at the border. Part V lays out possible solutions to the issue and the impacts that might result from those solutions. Part VI concludes this Note.

II. A Brief Legal History of the Border Search Exception

The Fourth Amendment protects citizens against unreasonable searches and seizures unless the government has secured a warrant upon probable cause.[25] It is important to note that “the usual remedy for a Fourth Amendment violation is suppression of the illegally seized evidence”[26] via the exclusionary rule. The exclusionary rule is “a deterrent sanction that bars the prosecution from introducing evidence obtained by way of a Fourth Amendment violation.”[27] The key factor when applying the exclusionary rule is whether or not the individual had a reasonable expectation of privacy in the area searched.[28] In his concurring opinion in Katz v. United States, Justice Harlan laid out the twofold test for determining whether an individual has an expectation of privacy in a certain area: “first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’”[29]Exceptions to Fourth Amendment protections are common in the U.S. legal system such as the doctrines of plain view[30] and search incident to arrest.[31] These exceptions demonstrate the willingness of courts to mold the plain text of the Amendment to fit specific situations. For example, in Carroll v. United States, the Supreme Court ruled that warrantless searches of vehicles were permitted as long as the officer performing the search had probable cause.[32] The relevant language asserts that “[t]ravelers may be so stopped in crossing an international boundary because of national self-protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in.”[33] This language laid the initial groundwork for the border search doctrine and is often cited in cases utilizing the exception.[34]Authority for the border search exception derives from several landmark Supreme Court decisions.[35] In justifying the border search doctrine, the Court has stated that the “exception is grounded in the recognized right of the sovereign to control, subject to substantive limitations imposed by the Constitution, who and what may enter the country.”[36] In particular, “the Government’s interest in preventing the entry of unwanted persons and effects is at its zenith at the international border.”[37] The Court has explicitly stated that “the expectation of privacy is less at the border than it is in the interior.”[38] However, despite the broad language of border search exception cases, the Court has also implied that the Fourth Amendment might impose limits on border searches, but it has never definitively spoken on the subject.[39] Courts must balance “the sovereign’s interests at the border” with the Fourth Amendment rights of the individual contesting the search.[40]While the Supreme Court has addressed searches of persons[41] and vehicles[42] at the border, it has never directly ruled on the issue of searches of personal electronic devices at the border. The law on border searches of electronic devices derives mostly from the Courts of Appeals.[43] In United States v. Arnold, the Ninth Circuit extended the border search exception to electronic devices, holding that “reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border.”[44] Five years later, the Ninth Circuit was called on again to review the issue of border searches and electronic devices in United States v. Cotterman.[45] 

III.  Cotterman and Beyon

2. United States v. Cotterman 

In United States v. Cotterman, Howard Cotterman and his wife were crossing the U.S.-Mexico border when he was flagged by the Treasury Enforcement Communication System for potentially possessing child pornography.[46] During the search of his vehicle, border agent Antonio Alvarado recovered and inspected three cameras and two laptops containing personal photos, along with several password-protected files.[47] The Cottermans were set free; however, suspecting that Mr. Cotterman had child pornography locked behind password-protection, the agents transported the laptops and cameras 170 miles to an off-site facility in order to conduct a forensic search of the devices.[48] The investigative search revealed hundreds of images of child pornography behind the password-protected files on Mr. Cotterman’s laptop.[49]After a grand jury indicted Mr. Cotterman for several offenses related to child pornography,[50] Mr. Cotterman moved to suppress the evidence claiming that it was acquired from an unlawful search and seizure violating his Fourth Amendment rights.[51] Following lower court proceedings, a divided three panel Ninth Circuit held that “reasonable suspicion was not required for the search and that ‘the district court erred in suppressing the evidence lawfully obtained under border search authority.’”[52]On rehearing en banc, the court ruled that forensic examination of electronic devices at the border requires a showing of reasonable suspicion.[53] The court explained that “[electronic devices] contain the most intimate details of our lives: financial records, confidential business documents, medical records and private emails,”[54] all of which “implicate[ ] the Fourth Amendment’s specific guarantee of the people’s right to be secure in their ‘papers.’”[55] In coming to their conclusion, the majority conceded that “legitimate concerns about child pornography do not justify unfettered crime-fighting searches or an unregulated assault on citizens’ private information.”[56] The court stated that “[r]easonable suspicion is a modest, workable standard that is already applied in the extended border search, Terry stop, and other contexts.”[57] Finally, the court reasoned that “[i]ts application to the forensic examination here will not impede law enforcement’s ability to monitor and secure our borders or to conduct appropriate searches of electronic devices.”[58]The court applied this standard to Mr. Cotterman’s case and ruled that the investigative search of his laptop was conducted upon reasonable suspicion and his “motion to suppress therefore was erroneously granted.”[59] Although Mr. Cotterman was unable to suppress the evidence, the court correctly balanced “the sovereign’s interests at the border” with the Fourth Amendment rights of the individual contesting the search.[60] Citing Justice Scalia, the court explained that “[i]t would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology.”[61] However, the court did not completely overrule Arnold, which rejected the requirement of reasonable suspicion for both cursory and investigative searches of electronic devices.[62] In fact, they explicitly stated that “we have approved a quick look and uninstructive search of laptops.”[63] While the court solved the issue of unreasonable investigative searches, the court is legitimizing the policy that cursory searches of personal electronic devices do not require reasonable suspicion.2. The Current SituationAs a result of Cotterman, travelers can be confident that border agents lack the authority to perform investigative searches of their electronic devices without reasonable suspicion. This is clearly a win for digital privacy rights. Unfortunately, the problem of suspicionless cursory searches is still rampant, as demonstrated by the ACLU, which recently filed a lawsuit against the Department of Homeland Security challenging border searches of electronic devices.[64]The concerning part of electronic device border searches stems from the fact that these are not isolated incidents. CBP released statistics for 2017 claiming that 30,200 international travelers, inbound and outbound, had their electronic devices searched.[65] That is roughly a 37% increase of electronic devices searched from 2016 to 2017.[66] CBP argues that national security outweighs the inconveniences of a small percentage of travelers, but privacy advocates disagree, stating that “[t]hey see the growth of a surveillance state eating away civil liberties a mouthful at a time.”[67]In early January 2018, CBP released a directive that outlined their procedures related to searching electronic devices at the border.[68] The directive states that “[t]he plenary authority of the Federal Government to conduct searches and inspections of persons and merchandise crossing our nation’s borders is well-established and extensive; control of the border is a fundamental principle of sovereignty.”[69]Outlining CBP procedures, the directive states:Border searches of electronic devices may include searches of the information stored on the device when it is presented for inspection or during its detention by CBP for an inbound or outbound border inspection. The border search will include an examination of only the information that is resident upon the device and accessible through the device’s operating system or through other software, tools or applications.[70]Further, the directive distinguishes between basic and advanced border searches, articulating:In the course of a basic search, with or without suspicion, an Officer may examine an electronic device and may review and analyze information encountered at the border . . . An advanced search is any search in which an Officer connects external equipment, through a wired or wireless connection, to an electronic device not merely to gain access to the device, but to review, copy, and/or analyze its contents.[71]The directive requires CBP to obtain reasonable suspicion before performing an advanced search, i.e. an investigative search.[72] Here, it is clear they are abiding by Cotterman’s precedent. In Cotterman, the advanced search occurred when the password-protected files on Mr. Cotterman’s computer were accessed by forensic software at the off-site facility.[73]In sum, the 2018 CBP Directive continues to permit unconstitutional border searches.[74] In America, the people are taking a stand. For example, there has been a recent spike in publications instructing readers on how to protect their privacy at the border[75] and privacy complaints continue to be filed against the Department of Homeland Security.[76] Even with this resistance, these constitutional violations are unlikely to stop.[77] What is the next step?The Supreme Court has never directly addressed border searches of electronic devices. In Riley v. California the Court ruled that “a warrant is generally required before [searching a cell phone], even when a cell phone is seized incident to arrest.”[78] The Court recognized that because times have changed and modern smartphones contain highly private and sensitive data, the intrusion on privacy today is not limited to physical realities.[79] Riley proves that federal courts are at the very least cognizant of the importance of electronic devices and would be a logical place for the Supreme Court to start in making future rulings. Until then, however, it is important for lower courts to take the Cotterman decision one step further and apply the reasonable suspicion standard to cursory searches of electronic devices.

3. Arguments Against Extending Reasonable Suspicion to Cursory Searches: the Cotterman Dissent

Judge Smith’s dissenting opinion in Cotterman lays out three primary arguments against extending reasonable suspicion to cursory searches of electronic devices: administrative burdens, national security concerns, and the diminished expectation of privacy at the border.[80] Although Judge Smith’s dissent was focused on the reasonable suspicion standard as applied to investigative searches of electronic devices, the same general arguments apply with equal force to cursory searches of electronic devices.A. The Dangers of Administrative BurdensThe primary argument against extending reasonable suspicion to cursory searches of electronic devices at the border is that the additional step of requiring border agents to use their reasonable judgment will create a potentially dangerous administrative burden.[81] The dissent in Cotterman was concerned that “[r]equiring law enforcement to make such complex legal determinations on the spot, and in the face of potentially grave national security threats, strips agents of their necessary discretion and deprives them of an efficient and administrable rule.”[82]Border agents must rely on their broad discretion without case-by-case determination of individuals because “[they] process hundreds of thousands of travelers each day and conduct thousands of searches of electronic devices each year.”[83] According to the dissent, forcing agents to comply with a case-by-case determination to conduct investigative searches of electronic devices at the border creates an undue burden due to the sheer number of individuals crossing the border every day.[84]In practice, however, the reasonable suspicion standard would cause minimal administrative burdens on border agents while preserving the critical rights guaranteed by the Fourth Amendment. The Cotterman court best articulated the sentiment when it stated, “[r]easonable suspicion is a modest, workable standard that is already applied in the extended border search, Terry stop, and other contexts.”[85] Continuing, the court explained that “[i]ts application to the forensic examination here will not impede law enforcement’s ability to monitor and secure our borders or to conduct appropriate searches of electronic devices.”[86]The same can easily be said about cursory examination of electronic devices. The standard of reasonable suspicion is less than probable cause, requiring “merely ‘a particularized and objective basis’ for suspecting” the individual is engaging in criminal activity.[87] Simply requiring border agents to have some reasonable, objective basis for conducting a cursory search on a personal electronic device is hardly an administrative burden.In the world of Constitutional Law, reasonable suspicion is a very moderate standard. The officer—or in cases of border searches, border agent—need not have a definitive certainty that the person is engaged in some unlawful conduct. Rather, the agent must assess the totality of the circumstances[88] and have some suspicion that the traveler coming through the border is involved in an illegal activity.The dissent in Cotterman worries that the holding forces agents “to determine on a case–by–case and moment–by–moment basis whether a search of digital data remains ‘unintrusive’…or has become ‘comprehensive and intrusive.’”[89] A solution is to simply extend reasonable suspicion to cursory searches of electronic devices. The “complex legal determination[]”[90] the dissent seems to be worried about would not exist if border agents were not required to differentiate between investigative and cursory searches. Applying the reasonable suspicion standard to both types of searches clearly eliminates this problem.B. The Interest in National SecurityThe Cotterman dissent also argued that there is an ever-present threat of terrorists entering the country.[91] Citing a U.S. Customs and Border Protection directive, Judge Smith explained that “border searches of electronic storage devices are ‘essential’ for ‘detect[ing] evidence relating to terrorism and other national security measures.’”[92] Further, terrorists tend to rely on electronic storage devices for a multitude of uses such as copying and altering passports and other travel documents.[93] Therefore, “[b]y providing special privacy protections for electronic devices at the border, the majority eliminates the powerful deterrent of suspicionless searches and significantly aids” terrorists and criminals.[94] This sentiment has been shared among scholars. One law review article suggests that the Cotterman decision has made it “more difficult for U.S. border agents to combat terrorism and child pornography” by carving “out a piece of the border search doctrine.”[95]Judge Smith predicted that “a reasonable suspicion requirement will likely disincentivize agents to conduct laptop searches in close cases.”[96] Theoretically, border agents accused of conducting an unreasonable search will face “very real consequences” such as the possibility of being sued in their official capacities for civil damages.[97] By disincentivizing border agents from conducting searches of electronic devices for fear of reprimand or legal action against them, the dissent argues that “these misaligned incentives create unnecessary risk … for our entire nation.”[98]However, there is no proof that extending reasonable suspicion to cursory searches, let alone investigative searches, would negatively impact the efficiency of border agents in carrying out their duties. Requiring the agent to make a reasonable determination in light of the totality of the circumstances is not a significant burden on the agent’s ability to carry out his duty. Reasonable suspicion “is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence.”[99] The border agent simply needs to have “a minimal level of objective justification” for searching the phone.[100] This standard is extremely flexible and, at the very least, creates a baseline for Fourth Amendment protections of electronic devices at the border.Further, the dissent’s argument that attaching reasonable suspicion to a border search of an electronic device will somehow disincentivize border agents from conducting a search in the first place is unfounded. Simply because a border agent must use a minimal level of objective justification to search an electronic device does not mean they will be exposed to legal consequences. In fact, lawsuits have already been filed against CBP for the invasive searches conducted on electronic devices even without the reasonable suspicion standard.[101]To assert that extending reasonable suspicion to searches of electronic devices would cause personal reprimand is baseless. If anything, it would diminish the number of lawsuits against CBP because the standard for conducting a search would be higher, theoretically resulting in a better-informed staff of border agents.C. The Diminished Expectation of Privacy at the BorderFinally, the dissent in Cotterman suggests that searches of electronic data have never been immune to the border search exception.[102] Judge Smith questioned the privacy of electronic devices to begin with, explaining that electronic storage devices are “hardly a bastion of privacy” because “they transmit a massive amount of intimate data to the public on an almost constant basis.”[103] According to Judge Smith, due to “the steady erosion of our privacy on the Internet, searches of electronic storage devices may be increasingly akin to a well-placed Internet search.”[104] The dissent asserts that “[m]apping our privacy rights by the amount of information we carry with us leads to unreasonable and absurd results.”[105]The Supreme Court has explicitly stated that because “an arrestee has diminished privacy interests does not mean that the Fourth Amendment falls out of the picture entirely.”[106] Further, “not every search ‘is acceptable solely because a person is in custody.’”[107] This same logic can be applied to travelers and border searches of electronic devices. The Cotterman court explained that “the uniquely sensitive nature of data on electronic devices carries with it a significant expectation of privacy and thus renders an exhaustive exploratory search more intrusive than with other forms of property.”[108] There is no reason why this principle should not also apply to cursory searches as well. The Court has already implied that searching the cell phone of an arrestee without a warrant is an unreasonable intrusion into the arrestee’s constitutional privacy due to the sensitive information contained on modern smartphones.[109] It is logical to apply the reasonable suspicion standard to cursory searches of electronic devices.The Supreme Court explicitly stated that “the Fourth Amendment protects people, not places.”[110] As the Court explained in Riley, “when ‘privacy-related concerns are weighty enough’ a ‘search may require a warrant, notwithstanding the diminished expectations of privacy’” of the individual.[111] Even more so, this Note is not arguing that a warrant is required for a border search of an electronic device, rather it is arguing that the workable standard of reasonable suspicion be applied. As the Supreme Court noted in 1990:Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.[112]Pursuant to Riley, the privacy-related concerns in an individual’s electronic device should clearly outweigh the diminished expectation of privacy at the border.

4. Solutions and Results

The most effective way to fix this problem is through legislative action. However, due in large part to partisan politics, the burden of responsibility for upholding U.S. citizens’ Fourth Amendment rights in cases of electronic device border searches falls upon the federal courts. As discussed earlier, CBP’s latest directive was clearly influenced by the Cotterman decision.[113] If courts take the initiative in restoring digital privacy rights by applying the reasonable suspicion standard to cursory searches of electronic devices, CBP would abide by that decision. Therefore, while legislative action would be the most effective and secure way to establish this standard, courts clearly have the ability to influence CBP policies.What would the application of reasonable suspicion to cursory searches of electronic devices at the border entail? Although reasonable suspicion “is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence,” there must still be some “minimal level of objective justification for making the stop.”[114] In practice, a border agent would first need to assess the totality of the circumstances, i.e. the entire situation, as opposed to one specific factor.[115] Based on the totality of the circumstances, the agent would then make an objective determination as to whether the particular traveler was engaged in some type of criminal activity or may be a threat to national security.For instance, if the agent observes physical manifestations of nervousness from a particular traveler such as profuse sweating or shaking, that might be enough to satisfy the reasonable suspicion standard. The Supreme Court has noted that “nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.”[116] Similarly, if the agent notices strange travel patterns in the traveler’s documents, that too might be enough to meet the low standard of reasonable suspicion. Again, reasonable suspicion “does not deal with hard certainties, but with probabilities.”[117] Applying this standard to cursory searches of electronic devices is a small demand, considering the privacy rights of U.S. citizens are being infringed upon by border agents on a daily basis.

5. Conclusion

Courts need to extend reasonable suspicion to cursory searches of electronic devices at the border. Generally speaking, however, that would only be the start. The border search exception’s detrimental effect on digital privacy is a stain on the integrity of the Constitution. The exception is a relic of the past in this age of rapid technological advancement. It clearly requires a new approach as we store more and more highly sensitive, confidential data on our phones, laptops, and tablets. At the end of the day, Cotterman was a strong starting point, but the next logical step is to extend the reasonable suspicion standard to cursory searches of electronic devices. 

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[1] J.D. Expected May 2019. Thank you to family, friends, and the Kentucky Law Journal staff for making this note possible.

[2] Kyllo v. United States, 533 U.S. 27, 33–34 (2001).

[3] Bill of Rights Institute, Bill of Rights of the United States of America (1791), http://www.billofrightsinstitute.org/founding-documents/bill-of-rights/ (last visited Jan. 20, 2018).

[4] U.S. Const. amend. I.

[5] Tracey Maclin, The Central Meaning of the Fourth Amendment, 35 Wm. & Mary L. Rev. 197, 197 (1993).

[6] U.S. Const. amend. IV.

[7] Maclin, supra note 5, at 197.

[8] See CBP Releases Updated Border Search of Electronic Device Directive and FY17 Statistics, U.S. Department of Homeland Security, https://www.cbp.gov/newsroom/national-media-release/cbp-releases-updated-border-search-electronic-device-directive-and (last modified Jan. 9, 2018).

[9] See The Constitution in the 100-Mile Border Zone, American Civil Liberties Union, https://www.aclu.org/other/constitution-100-mile-border-zone (last visited Jan. 22, 2018); see also Scott Bomboy, Does a Constitution-Free Zone Really Exist in America?, National Constitution Center (Feb. 15, 2013), https://constitutioncenter.org/blog/does-a-constitution-free-zone-really-exist-in-america (explaining that the phrase “Constitution free zone” derives from the fact that border agents can search any electronic device without cause, thus bypassing traditional Fourth Amendment protections).

[10] See United States v. Ramsey, 431 U.S. 606, 620 (1977).

[11] Id. at 616.

[12] United States v. Arnold, 533 F.3d 1003, 1008 (9th Cir. 2008). The standard of reasonable suspicion is defined as “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 4419 U.S. 411, 417-18 (1981). In making such a determination, “the totality of the circumstances—the whole picture—must be taken into account.” Id. at 417.

[13] Emily Dreyfuss, No, iPhones Aren’t Luxury Items. They’re Economic Necessities, Wired (Mar. 7, 2017), https://www.wired.com/2017/03/no-iphones-arent-luxury-items-theyre-economic-necessities/.

[14] Riley v. California, 134 S. Ct. 2473, 2484 (2014).

[15] Marcus Wolf, Border Agents Can Legally Search Electronic Devices, Government Technology (Apr. 17, 2017), http://www.govtech.com/security/Border-Agents-Can-Legally-Search-Electronic-Devices.html.

[16] U.S. Department of Homeland Security, supra note 8.

[17] Id. (19,051 in 2016 compared to 30,200 in 2017).

[18] Id.

[19] Lawsuit on Behalf of 11 Travelers Challenges Searches of Electronic Devices as Unconstitutional, American Civil Liberties Union (Sept. 13, 2017), https://www.aclu.org/news/aclu-eff-sue-over-warrantless-phone-and-laptop-searches-us-border.

[20] Esha Bhandari, Nathan Freed Wessler, and Noa Yachot, Can Border Agents Search Your Electronic Devices? It’s Complicated, American Civil Liberties Union (Mar. 14, 2017), https://www.aclu.org/blog/privacy-technology/privacy-borders-and-checkpoints/can-border-agents-search-your-electronic.

[21] United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013).

[22] Id. at 957.

[23] Id.

[24] CBP Directive No. 3340-049A: Border Search of Electronic Devices, U.S. Customs and Border Protection (Jan. 4, 2018), https://www.cbp.gov/sites/default/files/assets/documents/2018-Jan/CBP-Directive-3340-049A-Border-Search-of-Electronic-Media-Compliant.pdf.

[25] U.S. Const. amend. IV.

[26] Investigation and Police Practices, 80 Geo. L.J. 939, 939 (1992).

[27] Davis v. United States, 564 U.S. 229, 231–232 (2011).

[28] See Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J. concurring).

[29] Id. at 361.

[30] See Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971) (“It is well established that under certain circumstances the police may seize evidence in plain view without a warrant.”).

[31] See Hill v. California, 401 U.S. 797, 804–805 (1971) (holding that a search incident to a valid arrest does not violate the Fourth Amendment).

[32] Carroll v. United States, 267 U.S. 132,154 (1925).

[33] Id.

[34] See United States v. Montoya de Hernandez, 473 U.S. 531, 563 (1985) (Stevens, J. Concurring) (quoting Carroll, 267 U.S. at 154).

[35] See United States v. Ramsey, 431 U.S. 606 (1977); United States v. Flores-Montano, 541 U.S. 149 (2004).

[36] Ramsey, 431 U.S. at 620.

[37] Flores-Montano, 541 U.S. at 152.

[38] Id. at 154.

[39] United States v. Seljan, 547 F.3d 993, 999–1000 (9th Cir. 2008).

[40] United States v. Montoya de Hernandez, 473 U.S. 531, 539–40 (1985).

[41] See id. at 544.

[42] See Flores-Montano, 541 U.S. at 155-56.

[43] See United States v. Arnold, 533 F.3d 1003, 1008 (9th Cir. 2008); United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013).

[44] Arnold, 533 F.3d at 1008.

[45] United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013).

[46] Id. at 957.

[47] Id. at 957-58.

[48] Id. at 958.

[49] Id. at 959.

[50] Id.

[51] Id.

[52] Id.

[53] Id.at 968.

[54] Id. at 964.

[55] Id. (quoting U.S. Const. amend. IV).

[56] Id. at 966.

[57] Id. In Terry, the Supreme Court explained that “[w]hen an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of a physical harm.” Terry v. Ohio, 392 U.S. 1, 24 (1968). The Court ruled that “there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.” Id. at 27 (emphasis added). Reasonable suspicion generally requires that the officer “point[s] to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrants” an intrusion. Id. at 21.

[58] Cotterman, 709 F.3d at 966.

[59] Id. at 970.

[60] United States v. Montoya de Hernandez, 473 U.S. 531, 539–40 (1985).

[61] Cotterman, 709 F.3d at 965 (quoting Kyllo v. United States, 533 U.S. 27, 33–34 (2001)).

[62] United States v. Arnold, 533 F.3d 1003, 1008 (9th Cir. 2008).

[63] Id. at 960.

[64] See Lawsuit on behalf of 11 Travelers supra note 19.

[65] U.S. Department of Homeland Security, supra note 8.

[66] Id.

[67] Frank Miniter, Are You Okay With The Government Searching Your Cell Phone?, Forbes (Jan. 8, 2018, 01:19PM), https://www.forbes.com/sites/frankminiter/2018/01/08/are-you-okay-with-the-government-searching-your-cell-phone/#173bca0410ed.

[68] U.S. Customs and Border Protection, supra note 25.

[69] Id.

[70] Id.

[71] Id.

[72] Id.

[73] United States v. Cotterman, 709 F.3d 952, 958 (9th Cir. 2013).

[74] Sophia Cope & Aaron Mackey, New CBP Border Device Search Policy Still Permits Unconstitutional Searches, Electronic Frontier Foundation (Jan. 8, 2018), https://www.eff.org/deeplinks/2018/01/new-cbp-border-device-search-policy-still-permits-unconstitutional-searches.

[75] See Hilary Beaumont, Invasion of Privacy: Border Agents are Seizing Travellers’ Phones and Asking for Their Passwords. Here’s How to Protect Yourself, Vice News (Feb. 17, 2017), https://news.vice.com/en_ca/article/ywn8pj/how-to-secure-your-phone-when-crossing-the-border; Esha Bhandari, Nathan Freed Wessler, and Noa Yachot, Can Border Agents Search Your Electronic Devices? It’s Complicated, American Civil Liberties Union (Mar. 14, 2017), https://www.aclu.org/blog/privacy-technology/privacy-borders-and-checkpoints/can-border-agents-search-your-electronic; Rebecca Harrington, Federal Agents Can Search Your Phone at the U.S. Border – Here’s How to Protect Your Personal Information, Business Insider (Sept. 13, 2017, 2:37 PM), http://www.businessinsider.com/can-us-border-agents-search-your-phone-at-the-airport-2017-2; and E.D Cauchi, What if U.S. Border Agents Ask for Your Cellphone?, NBC News (Apr. 4, 2017), https://www.nbcnews.com/news/us-news/what-if-u-s-border-agents-ask-your-cellphone-n742511; Esha Bhandari, Nathan Freed Wessler, and Noa Yachot, Can Border Agents Search Your Electronic Devices? It’s Complicated, American Civil Liberties Union (Mar. 14, 2017), https://www.aclu.org/blog/privacy-technology/privacy-borders-and-checkpoints/can-border-agents-search-your-electronic.

[76] Charlie Savage, Privacy Complaints Mount Over Phone Searches at US Border Since 2011, Boston Globe, https://www.bostonglobe.com/news/nation/2017/12/23/privacy-complaints-mount-over-phone-searches-border-since/3Nk97AUtgK7wQEKZ0pkRnI/story.html.

[77] Searches of Phones at the Border Unlikely to Stop, Washington Examiner (Jan. 16, 2018, 12:01 AM), http://www.washingtonexaminer.com/searches-of-phones-at-the-border-unlikely-to-stop/article/2645452.

[78] Riley v. California, 134 S.Ct. 2473, 2493 (2014).

[79] Id. at 2489-90.

[80] United States v. Cotterman, 709 F.3d 952, 981–94 (9th Cir. 2013) (Smith, J. dissenting).

[81] Id. at 982.

[82] Id.

[83] Id.

[84] Id.

[85] Id. at 966.

[86] Id.

[87] United States v. Tiong, 224 F.3d 1136, 1140 (9th Cir. 2000) (quoting Ornelas v. United States, 517 U.S. 690, 696 (1996)).

[88] The totality of the circumstances focuses on the entire situation rather than one specific factor. Totality-of-the-Circumstances Test, Black’s Law Dictionary (10th ed. 2014).

[89] Cotterman, 709 F.3d at 984. When the dissent mentions an “unitrusive” search, they mean a cursory search, and a “comprehensive” search means an investigative search.

[90] Id. at 984.

[91] Id. at 984–85.

[92] Id. at 985 (U.S. Customs and Border Protection, Border Search of Electronic Devices Containing Information, CBP Directive No. 3340–049 § 1 (2009), https://www.dhs.gov/xlibrary/assets/cbp_directive_ 3340-049.pdf).

[93] Cotterman, 709 F.3d at 985.

[94] Id.

[95] Michael Creta, A Step in the Wrong Direction: The Ninth Circuit Requires Reasonable Suspicion for Forensic Examinations of Electronic Storage Devices During Border Searches in United States v. Cotterman, B.C. L. Rev E-Supp., 2014, at 45. Michael Creta, A Step in the Wrong Direction: The Ninth Circuit Requires Reasonable Suspicion for Forensic Examinations of Electronic Storage Devices During Border Searches in United States v. Cotterman, 55 B.C. L. Rev E-Supplement 31, 45 (2014).

[96] Cotterman, 709 F.3d at 985.

[97] Id.

[98] Id. at 986.

[99] Illinois v Wardlow, 528 U.S. 119, 123 (2000).

[100] Id.

[101] See, e.g., Zack Huffman, Homeland Security Sued Over Warrantless Tech Searches at Border, Courthouse News Service (Sept. 13, 2017), https://www.courthousenews.com/homeland-security-sued-warrantless-tech-searches-border/.

[102] Cotterman, 709 F.3d at 986.

[103] Id.

[104] Id.

[105] Id. at 987.

[106] Riley v. California, 134 S.Ct. 2473, 2488 (2014).

[107] Id. (quoting Maryland v. King, 569 U.S. 435, 463 (2013)).

[108] Cotterman, 709 F.3d at 966 (majority opinion).

[109] Riley, 134 S.Ct. at 2489–90.

[110] Katz v. United States, 389 U.S. 347, 351 (1967).

[111] Riley, 134 S.Ct. at 2488 (quoting Maryland v. King, 569 U.S. 435, 438 (2013)).

[112] Alabama v. White, 496 U.S. 325, 330 (1990) (emphasis added).

[113] See U.S. Customs and Border Protection, supra note 91.

[114] Illinois v. Wardlow, 528 U.S. 119, 123 (2000) (citing United States v. Sokolow, 490 U.S. 1, 7 (1989)).

[115] Totality-of-the-Circumstances Test, Black’s Law Dictionary (10th ed. 2014).

[116] Wardlow, 528 U.S. at 124 (2000).

[117] United States v. Cortez, 449 U.S. 411, 418 (1981).