Major League Baseball’s Major Labor Boondoggle: Rethinking Salary Arbitration (Print Vol. 114 Issue 4)

Major League Baseball’s Major Labor Boondoggle: Rethinking Salary Arbitration

Download a PDF

By: Matthew W. Givens

University of Kentucky J. David Rosenberg College of Law Student, Matthew W. Givens, details the inadequacies of the current MLB salary arbitration system and pitches alternative approaches, such as utilizing advanced statistics or independent baseball writers, to accurately determine player compensation.

The Separation of Election Contest Powers (Print Vol. 114 Issue 4)

The Separation of Election Contest Powers

Download a PDF

By: Casey Parker-Bell

University of Kentucky J. David Rosenberg College of Law Student, Casey Parker-Bell, proposes a three-tier election contest system that incorporates the State Board of Elections and the Kentucky Supreme Court to mitigate partisan influence by the General Assembly.

Kentucky’s Alford Predicament: The Case for Curbing Qualified Guilty Pleas in the Commonwealth (Print Vol. 114 Issue 4)

Kentucky’s Alford Predicament: The Case for Curbing Qualified Guilty Pleas in the Commonwealth

Download a PDF

By: Ben Whatley

University of Kentucky J. David Rosenberg College of Law Student, Ben Whatley, argues that Alford pleas frustrate the administration of justice and erode public confidence, advocating for Kentucky prosecutors to actively limit their use.

Inside the Courts: Structure, Composition, and Working Methods of the Austrian Constitutional Court and the United States Supreme Court Compared

Inside the Courts: Structure, Composition, and Working Methods of the
Austrian Constitutional Court and the United States Supreme Court Compared

Download a PDF

‍ Tobias Huber & Steven G. Dabney, Jr.*

‍ ‍Introduction‍ ‍ ‍

Austria and the United States, sitting over 8,000 kilometers, or 5,000 miles, away from one another, differ in numerous respects—perhaps most fundamentally, in the basic architecture of their legal systems: the former is rooted in civil law tradition, while the latter operates under common law. Yet in one notable regard, the small Republic of Austria and the vast United States share the podium: each country laid the foundations for one of the two prevailing models of constitutional review worldwide.[1] ‍

Constitutional review, in a narrower sense, refers to a court’s power to declare acts of the legislature unconstitutional.[2] While these two systems depart on the question of whether this mandate should be fulfilled unilaterally, by a single specialized court, or collectively, by a broad category of courts, both systems have a supreme organ of the judiciary that retains the final say on constitutional questions. ‍ ‍

The genesis of these courts, as well as the frameworks they operate in, have attracted considerable attention in legal scholarship.[3] Comparative analyses of the characteristics of the two systems have likewise been undertaken.[4] What follows now is, therefore, not intended as an exhaustive comparative analysis of the two systems in their entirety. Rather, the focus will be on a dimension that has received considerably less scholarly attention: the organizational framework of the courts, with particular emphasis on their institutional design and how they work within the legal frameworks governing them.‍ ‍

The aim of this paper is to outline the composition, methods of operation, and decision making of the Austrian Constitutional Court and the United States Supreme Court. The first two parts of the article set out the core organizational structures and methods of decision-making of each court. Part III explores the courts’ similarities and differences, reflecting on which court may demonstrate greater effectiveness in specific areas—and what each court might take away from the other.‍ ‍‍ ‍

I.  Composition, Functioning, and Working Methods of the Austrian Constitutional Court

‍ ‍A.  Characteristics of the Austrian Constitutional Review

In Austria, the institutional framework for judicial review of legislation is centralized in one single entity: the Austrian Constitutional Court (“Verfassungsgerichtshof”). Drawing upon the concept brought to its definitive form by Viennese legal scholar Hans Kelsen[5]––who referred to the Austrian Constitutional Court as his “liebstes Kind”[6]––the Court[7] has remained largely unchanged since its establishment in 1920 in terms of its powers and basic organizational structure.[8]

With respect to some of its current powers and specific institutional arrangements, the Austrian Constitutional Court had a predecessor in the Imperial Court of Justice (“Reichsgericht”)[9] that heard jurisdictional disputes and acted as a special administrative court for the Austrian part of the Austro-Hungarian Empire (indeed, the powers of the Imperial Court of Justice were designed far more narrowly, as it lacked the authority to review laws for their constitutionality).[10] Furthermore, the origins of the Court’s current power to rule on actions asserting the responsibility of supreme authorities can be traced back to the special State Court of Justice (“Staatsgerichtshof”), which was established in 1867.[11] ‍

Yet, Austria ventured into uncharted territory when incorporating the statutes about the Constitutional Court into the Austrian Constitution of 1920––which is the twelfth-oldest constitution still in force around the globe[12]––as it was the first constitution worldwide to effectively implement a system of centralized legal constitutional review.[13] Emphasis, however, must be placed on centralized: Austria did not invent judicial review. The concept can be traced back to the U.S. Judiciary Act of 1789[14] and the Federalist Papers.[15] First applied by the U.S. Supreme Court itself in 1803 in the case of Marbury v Madison,[16] the U.S. model subsequently influenced early debates about constitutional jurisdiction in Germany and Austria.[17] Notably, supreme courts in several Latin American countries were likewise empowered to rescind unconstitutional laws well before the concept became established in Europe.[18] The distinctive and innovative feature about the Austrian system, however, was the introduction of a centralized system of constitutional adjudication, vested in a separate and specialized constitutional court.[19] In the course of the twentieth century, this concept was adopted by numerous other constitutions,[20] with the German Federal Constitutional Court being the most prominent example.[21] The concept “of a separate constitutional court may be said to be Austria’s leading export” in the legal world.[22]‍ ‍

The Austrian Constitutional Court, within the system of separation of powers, is an organ of the judiciary, whose decisions may invalidate acts of the legislative and executive branch.[23] The Court is supposed to guarantee that, as Austrian scholar Walter Berkaput it, “law is always above power.”[24] Its central mechanism to fulfill this task is its authority to review general executive orders (ordinances), laws, and international treaties for their conformity with higher-ranking law. If the Court finds a provision to be unlawful, it may rescind it. If necessary, the Court can even rescind statutes with constitutional status in case they conflict with the entrenched principles of the Austrian Constitution[25] (to date, however, the Court has exercised this power only once, invalidating a constitutional provision in a case decided in 2001).[26] For this reason, the Court is often referred to as a “negative legislator.”[27] This power is exclusive, no other entity in the Austrian legal system is entitled to examine the legality of laws.[28] At the same time, the Constitution allows all other courts to challenge the unlawfulness of ordinances, laws, or international treaties before the Constitutional Court.[29] However, the Court may not only act upon application by a court or an affected individual,[30] it can also act ex officio when the provision is applicable in a pending proceeding before the Court.[31]‍ ‍

Unlike Germany, the Austrian federal states do not have their own constitutional courts.[32] The Austrian Constitutional Court’s competence of review therefore applies to both federal and state laws (“Bundesgesetze und Landesgesetze”).[33] Accordingly, the Constitution seeks to ensure that the Court’s institutional structure reflects the federal character of the Austrian legal system: first, some of the Members of the Court[34] are nominated by the Federal Council (the federal state chamber of the legislature).[35] Second, three Members of the Court must have their permanent place of residence outside of Vienna.[36] Whether the latter requirement genuinely contributes to embedding the federal realities of the Austrian legal system within the structure of the Court, however, appears highly doubtful.‍ ‍

In addition to its competence to review legislation, the Court is entrusted with two other main responsibilities that define the core of its mandate:[37] it examines whether decisions of lower administrative courts respect fundamental rights[38] and it decides on conflicts of jurisdiction between state institutions (to a limited extent).[39] Furthermore, the Court exercises powers that do not necessarily have to be exercised by a constitutional court.[40] These powers include to review the lawfulness of elections,[41] to decide on trials of officials,[42] or to rule on financial claims against the federal government, states, and municipalities, to name a few.[43] On the other hand, the Austrian Constitutional Court does not have the power to review court rulings in civil and criminal matters or from the Supreme Administrative Court.[44]‍ ‍

As a result, the Court handles a large number of cases every year. In 2024, the Court dealt with 5,376 newly pending cases and 989 cases from the previous year.[45] It is worth noting that it settled 5,346 of these cases,[46] averaging only seventy-nine days per case.[47] These figures—which are comparatively good by international standards—can be attributed to the well-thought-out organization and working methods of the Austrian Constitutional Court.‍‍ ‍

B.  Composition of the Constitutional Court ‍

i.  Organizational Framework‍‍

In Austria, as a civil law country, the legal provisions governing the Constitutional Court are entrenched in the Austrian Constitution and further specified in the relevant Constitutional Court legislation.[48] The organizational framework of the Court is regulated in considerable detail in Articles 137 to 148 of the Austrian Federal Constitutional Act (FCA) (“Bundes-Verfassungsgesetz [B-VG]”). Further provisions are set out in the Constitutional Court Act of 1953 (“Verfassungsgerichtshofgesetz [VfGG]”) and in the Rules adopted by the Court itself in 1946.‍ ‍

The Austrian Constitutional Court consists of fourteen members: one President of the Court (“Präsident des Verfassungsgerichtshofes”), one Vice-President of the Court (“Vizepräsident des Verfassungsgerichtshofes”) and twelve other judges, called additional Members of the Court (“weitere Mitglieder”).[49] Plus, there are six substitute Members.[50] As to numbers, the Austrian Constitutional Court corresponds to most other European constitutional courts.[51] To manage its heavy workload, the Court has its own administrative apparatus, which currently consists of around 110 employees, including both jurists (legal staff) and other personnel.[52] A significant share of the Court’s legal staff consists of law clerks (“Verfassungsrechtliche Mitarbeiter”), who help the responsible Members of the Court draft the Court’s opinions. The law clerks usually are recent law school graduates, most of whom have completed a Ph.D. in legal studies or worked as research and teaching assistants at a university, and stay with the Court for approximately four years.[53] Usually, they strive for a promising career afterwards—some Members of the Court were once law clerks themselves.[54]‍ ‍

The President, the Vice-President, all additional Members, and substitute Members of the Court must hold a degree in Austrian law and have at least ten years of professional legal experience.[55] In regards to what qualifies as “professional legal experience,” the Constitution explicitly lists judges, administrative officials (civil servants), and university law professors as examples.[56] A specified number of Members must be appointed from this group of professions; however, in practice, the Court regularly includes attorneys among its members as well.[57] As most other European countries, the Austrian Constitution therefore stipulates a monopoly of jurists at the Court.[58] Special knowledge in the field of constitutional law is, however, not required.‍ ‍

Currently the Court consists of eight university professors, three attorneys, two administrative officials (civil servants), and one judge from the Supreme Administrative Court.[59] This shows that the constitutional regime governing the composition of the Court results in a mix of several legal professions in practice. Currently, four of the fourteen constitutional judges are women.[60]‍ ‍

ii.  Appointment of New Members of the Court‍‍ ‍

All new judges—including the President and the Vice President of the Court—are appointed through a coordinated process with the legislator and the executive branch working together and sharing nomination rights.[61]‍ ‍

The President of the Court, the Vice President, six other Members and three substitute Members are nominated by the federal government; three other Members and two substitute Members are nominated by the federal chamber of the legislature (National Council); and three other Members and one substitute Member are nominated by the federal state chamber of the legislature (Federal Council).[62] If an appointment is made by one of the legislature’s chambers, there is, as in the United States, a hearing procedure. A key observation at this point: more than a half of the overall Members of the Court are nominated by the executive branch.‍ ‍

After either the federal government or one of the two chambers of the legislature proposes a candidate to the Federal President,[63] depending on the respective responsibility for proposing a new member, the Federal President then formally appoints the new member.[64] Although the Federal President is bound by the proposals, they have a margin of discretion as they can always reject a proposal.‍ ‍

In practice, this procedure results in political parties effectively controlling the nomination process:[65] although the judges do not have to be (officially) affiliated with political parties, “they usually have a reputation for being politically oriented in a certain direction.”[66] This has repeatedly given rise to criticism of a possible political dependence of constitutional judges;[67] however, in an overall perspective, such criticisms arose only sporadically and typically dissipate quickly—most probably because the Members of the Court are usually “very keen to behave strictly neutrally”[68] and the case law of the Court does not provide objective evidence of partisan bias in the Court’s decisions either.[69]‍ ‍

In addition, the Austrian Constitution establishes particularly strict rules (by international standards)[70] of incompatibility with other state offices for the Members of the Court: Members of the federal government, a state government, the federal and the state legislator(s), or the European Parliament may not serve on the Court.[71] Any person who has held any of these positions within the past five years prior to appointment is ineligible as President or Vice President of the Constitutional Court.[72] Originally, these incompatibility provisions applied exclusively to the President and the Vice President of the Court. Consequently, they affected only a part of the Court’s composition. However, presumably in response to a case involving a former Federal Minister of Justice who moved almost seamlessly from his governmental office to being a Member of the Constitutional Court and resigned from his Court position after only three years (reportedly to pre-empt impeachment as a Member of the Court, according to media speculation),[73] these rules have recently been tightened: following a constitutional amendment in 2024, the restrictions were extended to all (other) Members of the Court. Now, any person who has held one of the aforementioned positions within the preceding three years is ineligible for appointment as a Member or a substitute Member.[74] The shift from being a high-ranking politician to being a constitutional judge now depends on having completed a political “cooling-off” period of several years. Thereby, the independence of the Court should be preserved, and patronage of office be prevented.‍‍ ‍

iii.  Status and Tenure of the Members of the Court‍‍ ‍

Austrian constitutional judges do not perform their duties at the Court on a full-time basis.[75] Those who are judges, lawyers, and university professors therefore remain active in their main profession; only administrative officials are released from their duties.[76] The rationale of this concept is to broaden the Court’s substantive expertise by allowing practical experience from different areas of legal practice to be incorporated into its deliberations.[77]

Reality, however, deviates from this idea: in practice, the original profession becomes subordinate to the activity as a constitutional judge.[78] This is primarily due to the current workload at the Court.[79] The question of whether the concept of holding the position of a constitutional judge as a secondary office remains appropriate seems worthy of discussion[80]—especially against the backdrop of the Court’s volume of cases and potential conflicts of interest of the Members.‍ ‍

The age limit for Members and substitute Members of the Court is seventy years. Their term of office expires on December 31, of the year in which they attain that age.[81] Things were, however, not always this way: the age limit was introduced by the Constitutional Amendment of 1929, nine years after the Austrian Constitutional Court was established.[82] Under the original version of the FCA of 1920, members had been appointed for life.[83] The introduction of a mandatory retirement age was based on the intention to “de-politicize” the Court[84] by regulating the office of a constitutional judge more closely in accordance with the principles applicable to ordinary judges, among which was the establishment of an age limit.[85] Indeed, establishing a high retirement age is considered to be the most effective safeguard of judicial independence within a constitutional court.[86] The rather long term of office (compared to other European countries, where fixed-terms usually range, for example, from nine years in Portugal to twelve years in Germany)[87] leads to a high degree of continuity, so that many judges have been with the Court for more than two decades.[88] In Austrian legal scholarship, however, it is debated whether the age limit is too high, given the general statutory retirement age in Austria being sixty-five.[89] Currently, however, there are no indications that the legislature intends to lower the age limit; rather, it may be assumed that the current legal framework has proven its worth.[90] It may furthermore be pointed out that the term of office of judges at the European Court of Human Rights likewise ended upon reaching the age of seventy until a few years ago[91] (in 2021, the previously explicit age limit was repealed and now applies implicitly, effectively resulting in an age limit of seventy-four years).[92]‍ ‍

The Members of the Court are independent in the exercise of their legal office.[93] Parties to the Court’s proceedings do not have the power to challenge Members of the Court on grounds of bias.[94] The law, however, provides for grounds of exclusions that must be observed by the judges ex officio.[95]‍ ‍

In certain cases, particularly if a Member disregards three successive invitations to attend hearings of the Court without providing an adequate excuse,[96] has shown themself unworthy of the respect and trust required by the office (through conduct in or outside office), has grossly violated the duty of confidentiality, or becomes unfit to perform their official duties due to physical or mental incapacity,[97] the Court can decide to remove a Member from office with a two-thirds majority of the Members. To date, however, this has never happened.[98]‍ ‍

C.  Decision Making and Working Methods‍ ‍

i.  The “Plenary” as a Unified Adjudicatory Body and the
“Small Assembly” as Its Efficiency Boost‍‍ ‍

Unlike Austria’s other two supreme courts—the Supreme Administrative Court and the Supreme Court of Justice—, the Constitutional Court does not operate in panels (“Senaten”).[99] Rather, it has a single decision-making body: the plenary (“Plenum”). The rationale for the Court always adjudicating as one single decision-making body—as noted, unique among Austria’s three supreme courts—becomes clear when looking at the early debates surrounding the establishment of constitutional adjudication in the nineteenth century.[100] It was agreed at the time, as remains the case today, that the powers of nomination should be shared between the legislator and the executive branch. This arrangement, however, was accompanied by concerns that the Court might be divided into two separate panels, one composed of members nominated by the legislator, and the other of members nominated by the executive branch.[101]Therefore, members of the 1848 Kremsier Parliament “expressly requested that the Court always act as one entity.”[102]‍ ‍

This body generally includes the President, the Vice President, and the 12 additional Members, whereby a quorum is obtained if at least eight Members are present in addition to the President.[103] If a Member is absent, a substitute Member steps in.‍ ‍

For certain cases defined by law,[104] however, a simplified procedure applies, for which a quorum consisting of five judges (a chair and four other Members) is sufficient,[105] known as “Small Assembly”. More than ninety percent of the cases at the Constitutional Court are decided in this small constellation.[106] Although the concept of the Small Assembly is highly relevant in practice, it is not mentioned in the Constitution. Some scholars hence question its constitutionality.[107] In 2002, however, the Court itself had to decide on the constitutionality of the provision providing the legal basis for the Small Assembly procedure. The Court held that, particularly against the background of the continuous expansion of the Court’s powers, its proper functioning can only be guaranteed if it is able to decide certain cases with a reduced number of voting Members and without extensive written reasoning. Hence, the Court itself considered the provision to be crucial for the Court’s functionality and found it to be constitutional.[108]‍ ‍

ii.  Deliberations and Decision-Making‍‍ ‍

The Austrian Constitutional Court is not constituted as a continuously sitting tribunal. Deliberations take place four times a year within the framework of so-called sessions (“Sessionen”), which usually last around three weeks[109] in the months of February/March, June, September/October and November/December.[110]‍ ‍

Preparations for the consultations take place between the sessions. The Court appoints a number of its Members the role of “Permanent Reporters”[111] for a period of three years,[112] and they are tasked with drafting the Court’s opinions, assisted by the aforementioned law clerks.[113] The number of Permanent Reporters is determined by the Court itself; currently, there are twelve Permanent Reporters.[114] Hence, almost every Member of the Court[115] simultaneously acts as a Permanent Reporter and is therefore present at the Court (whereas, in the early days, two Permanent Reporters were sufficient; all other judges were not involved in the preparatory work and would only convene at the Court for deliberations).[116] Without the collective effort of almost all judges preparing the cases between the sessions, the Court would not be able to handle its caseload.[117]‍ ‍

The President of the Court assigns the cases to the Permanent Reporters, seeking to assign related cases to the same Permanent Reporter, distribute the workload evenly, and take prior legal experience into account.[118] Drafts prepared by the Permanent Reporters that are intended for deliberation at a session must be circulated to all Members (even where they are proposed to be dealt with in the Small Assembly)[119] before Friday at noon in the penultimate week before each session.[120] Generally, findings of the Constitutional Court’s must be based on a public oral hearing, however, numerous, far-reaching exceptions to this general rule make public oral proceedings rare in practice.[121] On average, only about ten such hearings take place each year.[122]‍ ‍

Decisions of the Court—whether made in the plenary or in the Small Assembly—are reached by simple majority.[123] In other words, an opinion drafted during the preparations must obtain the support of more than half of the voting members during its deliberations. The President of the Court, as a general rule, does not have a vote.[124] However, if one of the opinions received exactly half of the votes, the President is required to cast a decision.[125] At times, heightened voting requirements apply: a unanimous decision is required to dismiss a case and refuse further consideration on the grounds of manifest lack of jurisdiction, failure to comply with a deadline, failure to remedy formal deficiencies, res judicata (i.e., matters that have already been adjudicated), or lack of standing.[126]‍ ‍

The voting results are not published.[127] Unlike the ECHR or U.S. Supreme Court, the outvoted members are not allowed to publish dissenting opinions on decisions.[128]‍ ‍

D.  Conclusion

‍ ‍‍Constitutional jurisdiction in Austria is exercised by a single institution, the Constitutional Court. With its wide range of powers concerning key areas of a liberal democratic state, the Austrian Constitutional Court plays a central role not only in safeguarding the precedence of the Constitution, but the system of Austria’s rule of law in general. Its authority to review acts of the executive and legislative branch, as a body of the judiciary, secures the Constitution’s precedence of all state action.‍ ‍

Both the role of the Court in the Austrian constitutional state and its organizational structure and working methods are distinctive. These include the Court's ability to rescind laws, the legal status of its members, who come from a wide variety of legal professions and perform their duties as constitutional judges (at least in idea) on a part-time basis, and the non-permanent establishment of its uniform panel of judges.‍‍ ‍

II.  Composition, Functioning, and Working Methods
of the United States Supreme Court‍‍ ‍

A.  Characteristics of the United States Constitutional Review‍ ‍

The Supreme Court of the United States of America is “the highest tribunal in the Nation for all cases and controversies arising under the Constitution or the laws of the United States.”[129] Article III of the U.S. Constitution—the foundational document, ratified in 1788, which frames the structure of the U.S. federal government—bestowed the powers of the federal judiciary onto “one supreme Court,” along with “such inferior Courts” to be established by Congress.[130] Although the framers explicitly referenced the necessary existence of a “supreme Court” in the Constitution, they left the task of precisely defining the Court’s role and structure to Congress. When the nation’s First Congress convened in 1789, it fulfilled the mandate of Article III, section 1 with the enactment of the Judiciary Act of 1789.[131] The Act established thirteen district courts and three circuit courts across the country, along with a Supreme Court composed of six Justices—five Associate Justices and one Chief Justice.[132] The Court has evolved significantly in both form and function since its inception.‍ ‍

The Court’s power of judicial review, the authority to declare government actions unconstitutional, is not directly addressed in any provision of the U.S. Constitution.[133] Rather, the Supreme Court’s first authoritative legal assertion of this power came in the 1803 case of Marbury v. Madison, where Chief Justice John Marshall proclaimed that “[i]t is emphatically the province and duty of the judicial department to say what the law is,” and “a law repugnant to the constitution is void[.]”[134] Here, the fundamental pretext of Chief Justice Marshall’s assertion of the Court’s power was that if the text of the Constitution is to have meaning, its Framers must have intended some manner in which its meaning could be authoritatively interpreted.[135]‍ ‍

Legal academics and historians are divided on whether Marbury truly “created” judicial review in the United States, or merely “institutionalized” a doctrine that had already been informally “approved by the vast majority of the American political leaders during the founding period of the Constitution and thereafter.”[136] Regardless, the Court’s assertion of such authority was ultimately reinforced by the lack of challenge or opposition by the legislative and executive branches of the early federal government.[137] As has been the case in many instances throughout American history, congressional acquiescence allowed a constitutional power vacuum to be filled by a more zealous branch of government.‍ ‍

The Constitution’s Supremacy Clause, deeming the “Constitution . . . the supreme Law of the Land,”[138] and its role in the structure of American federalism also bolstered the credence of judicial review. Where the Constitution and state law had the potential to intersect and conflict, it was essential to have some method for determining when state legislatures had exceeded their authority to legislate on certain issues or when state courts had improperly applied federal law. With “[l]itigation being the most practical method for uncovering conflicts between state law and the Constitution, federal courts became the natural repository for ultimate constitutional review of state action.”[139]‍ ‍

Constitutional review in the United States is uniquely decentralized: the Supreme Court does not have exclusive jurisdiction over all cases or controversies involving a constitutional question.[140] Rather, all Article III federal and traditional state courts of general jurisdiction are able to address issues of constitutionality, subject to an appellate court’s review.[141] Under the Supremacy Clause, both state and federal courts alike are bound preeminently to render decisions according to the principles of the U.S. Constitution and other sources of federal law.[142] While case law has established the Supreme Court as the final authority on interpreting federal law, other federal courts also possess constitutional authority to review state court decisions that may conflict with the Constitution or federal law.[143] When a case requires a state court to interpret federal law, its decision is appealable directly to the Supreme Court.[144] As such, despite the decentralized model, the Supreme Court remains “supreme” in all constitutional controversies as the final arbiter of federal law.‍‍ ‍

B.  Composition of the United States Supreme Court‍ ‍

i.  Organizational Framework‍‍ ‍

The Constitution addresses neither the size of the Supreme Court nor any defined roles for Justices. Pursuant to Article III, section 1, these terms are set by Congress. From 1789 through the conclusion of the American Civil War, numerous Acts of Congress altered the number of concurrent seats on the Court, ranging from five to ten total seats at a time.[145] Since 1869, that number has remained fixed at nine.[146] This includes one Chief Justice, who serves as the presiding officer of the Court, and eight Associate Justices.[147]‍ ‍

Each Justice is permitted to hire their own “personal staff, including two secretaries, a personal messenger, and up to four law clerks . . . ” per Court term.[148] Clerkships are reserved for attorneys with at least one year of experience clerking for a state or federal judge; in such a role, they assist with researching legal issues, determining which cases to allow to be heard, and drafting the Court’s opinions.[149] The Court is also assisted by nine Court Officers who undertake much of the administrative workload, allowing the Justices to remain primarily focused on substantive legal matters.[150] Additional “supporting departments” include the public information office, the data systems office, the office of legal counsel, and the office of the curator.[151] These offices act as the information liaison between the Court and the public, provide technical support, serve as legal counsel for the Court, and facilitate exhibits and educational programs for the public, respectively.[152] The Court even retains an auxiliary staff that includes telephone operators, woodworkers, first-aid staffers, a barber, and a seamstress.[153] These staffers, while uninvolved in the substantive work of the Court, ensure that the Court, its property, and its employees are properly taken care of and able to operate efficiently.‍‍ ‍

ii.  Requirements and Professional Background for Appointment‍‍ ‍

The Constitution sets no formal qualifications for the appointment of Justices to the Supreme Court. Justices may be appointed regardless of age, native-born citizenship, education, or professional background.[154] Despite the lack of required legal education, historically, all Justices have been trained in the law and demonstrated adequate, if not exceedingly impressive, legal experience.[155] Many of the eighteenth and nineteenth century Justices studied the law through apprenticeships, as the small number of formal American law schools made institutional legal education rare.[156] Ultimately, the method by which appointment of the Justices occurs serves as the only formal administrative roadblock preventing any woefully underqualified Justices from making their way onto the Court.‍‍ ‍

iii.  Appointment of Supreme Court Justices‍‍ ‍

Members of the Supreme Court of the United States are appointed for life; vacancies occur only after a Justice dies, retires, or resigns.[157] Upon any of these triggering events, it becomes the constitutional responsibility of the President to nominate a successor for the vacating Justice.[158] Importantly, however, the President is constitutionally mandated to make their selection “with the Advice and Consent of the Senate,”[159] meaning any appointee will be subject to Senate confirmation proceedings. Since the 1960s, the Senate Judiciary Committee has begun this process in three steps: first, they conduct a pre-hearing investigation; second, they conduct public hearings with the appointee; and third, they issue the Committee’s decision.[160] The full Senate may vote to confirm the appointee only if a majority of the Committee votes in favor of their approval; if the appointee fails to secure the support of a majority of the Committee members, the confirmation process halts and the President must nominate a new appointee.[161] Once approved by the Committee, final confirmation requires only a simple majority of the full Senate.[162]‍ ‍

While the appointment process serves as the only administrative check on the quality of Justices joining the bench, political pressures largely mitigate the risk of underqualified appointees prevailing. By nature of the Senate confirmation process, presidents understand the necessity of only nominating those with “unquestionably outstanding legal qualifications” if they want to secure the best odds for their nominee being confirmed.[163] Politics aside, Senators will always expect a high degree of merit as the bare minimum from any nominee to the nation’s highest tribunal. The vast majority of modern nominees have had distinguished legal careers as lower court judges, legal scholars, and private practitioners.[164] Sixty-five percent of Supreme Court nominees since 1945 were serving as federal appellate court judges at the time of their appointment.[165]‍ ‍

iv.  Legal Status of Supreme Court Justices‍‍ ‍

The life tenure enjoyed by Supreme Court Justices under Article III is intended to structurally insulate the judiciary from external political pressures. Justices do not campaign to obtain or retain their positions, their terms on the bench are not time-limited, and they may not be removed based on the will of any superior or the public at large. Rather, Justices may be removed from the bench only through impeachment by Congress.[166] Impeachment of a Justice, or any other Article III judge, requires a majority vote by the House of Representatives.[167] If a majority is reached in the House, then the Justice is given a trial, conducted by the Senate, with the Vice President of the United States presiding.[168] If two-thirds of the Senate vote to convict, the Justice will be removed from the bench.[169] This is extremely rare; a Supreme Court Justice has only been impeached once in the nation’s history—Justice Samuel Chase was impeached in 1804 for exhibiting unethical conduct in “politically sensitive cases,” though he was never convicted.[170]‍ ‍

Because Justices, barring impeachment, serve indefinitely and their successors are appointed by the President, their decision to retire and the timing of that decision is highly consequential. Justices who want a like-minded successor are incentivized to retire while a President matching their views holds office. This form of partisan scheming has been a catalyst of public pressures to reform the terms of justices’ tenures.[171]‍ ‍

The Supreme Court generally operates full-time, in its official capacity, over a nine-month term: from the first Monday in October to the end of June.[172] The Justices’ “summer recess” spanning July through September is something that no other federal judges receive.[173] During such breaks, the Justices do not hear oral arguments or meet to decide cases. However, their work is not halted entirely. In the summer months, Justices must still contend with the court’s emergency, or “shadow” docket, consisting of applications seeking immediate action from the Court when circumstances dictate that a speedy resolution is required.[174] The Court’s robust administrative staff network is crucial in allowing the Justices to keep up with their duties year-round and ensure the effective application of law.‍‍ ‍

C.  Decision Making and Working Methods‍ ‍

i.  Case Intake and the Certiorari Process‍‍ ‍

The Supreme Court has both original and appellate jurisdiction. Its original jurisdiction is limited to cases involving disputes between states or among ambassadors and other high-ranking ministers.[175] The vast majority of the Court’s caseload, however, comes from its appellate docket.[176] Once a final ruling has been reached in a case by the highest appellate court within the relevant jurisdiction (generally, a Federal Circuit Court of Appeals or a state court of last resort), a party to the action may petition the Supreme Court for review by asking the Court to grant a writ of certiorari.[177] Once a petitioner files their certiorari petition, any respondents have thirty days to file a brief arguing why the case is not fit for the Supreme Court’s review.[178] The Court may also allow third parties who are uninvolved in the particular case at issue, but whose interests are implicated by the case’s potential outcome, to file amicus curiae briefs to provide the Court additional information or arguments relevant to how a case should be analyzed.[179] The Court then reviews the petition and opposing or supporting briefs and takes a vote of the Justices to determine whether the case should be heard. Under the popularly titled “Rule of Four,” with the Court’s current composition of nine total Justices, the votes of only four Justices are required to accept a case.[180] On average, the Court receives over 7,000 petitions each year—and of those, generally less than 200 are accepted and heard.[181]‍ ‍

As previously mentioned, the Court must also occasionally address cases through its emergency, or “shadow” docket. This is where the Court rules on “procedural matters, such as scheduling, and considers requests for emergency” relief without full briefing or oral argument.[182] Since 2023, the docket has been used with increasing frequency, particularly for addressing matters concerning the constitutionality of actions taken by the Trump Administration.[183] Many have criticized the Court’s increased use of the emergency docket for making such significant decisions.[184] The lack of “full briefing, oral argument, and deliberation among the [J]ustices,” along with the lack of required explanation for its rulings, has resulted in the Court issuing decisions with “great consequences” for non-parties with very little transparency regarding its justifications for arriving at a particular decision.[185]‍ ‍

ii.  Oral Argument and Deliberations‍‍ ‍

Cases for which certiorari was granted proceed to oral argument after the parties’ briefs have been reviewed. Generally, only one attorney from each side of the litigation may participate, and each is given thirty minutes to present their case.[186] Though, this rarely, if ever, is one continuous thirty-minute speech; oral arguments are often dominated by questioning from the Justices looking for clarifications on a party’s argument.[187] ‍

Following oral arguments, the Justices hold a conference to discuss the case and address each other’s concerns in a private conference room adjacent to the Chief Justice’s chambers.[188] As a matter of tradition, each conference begins with the Justices convening and shaking hands.[189] As they delve into the substance of the cases before them, each Justice is granted the opportunity to offer an uninterrupted statement, providing their position on the case without discourse from the other Justices.[190] The Chief Justice delivers his statement first, and the Associate Justices then provide their statements in descending order of seniority.[191] While Justices may discuss cases with their law clerks and other administrative staff before a conference, only the Justices themselves are allowed to be present and to participate—absolute confidentiality is observed.[192] Generally, the Court’s consideration of a case ends here, though some Chief Justices have permitted additional open discussions following the conclusion of uninterrupted statements.[193] Justice Antonin Scalia famously complained about the lack of opportunity to persuade the other Justices to reconsider their positions.[194]‍ ‍

iii.  Voting and Opinion Assignment‍ ‍‍

At the conclusion of the nine Justices’ uninterrupted statements, they proceed to a vote.[195] Each Justice’s vote is cast in the same order as their statements were given, beginning with the Chief Justice and descending through the Associate Justices based on seniority.[196] The most senior Justice voting with the majority generally selects the Justice to be tasked with writing the majority opinion.[197] Any holdings expressed in majority opinions represent a binding decision of the Court[198]—a majority of Justices must sign onto the opinion, expressing their agreement with the opinion in its entirety, before it may be publicly delivered.[199] If there are any dissenting Justices, the most senior dissenting Justice selects the Justice to be tasked with writing the dissenting opinion.[200] Justices who agree with the outcome of the case but disagree with the majority’s justifications may write concurring opinions, with which other Justices may join.[201] Likewise, if a dissenting Justice disagrees with any justifications presented in another Justice’s dissent, they may elect to write separately to memorialize their objections.[202] Note, however, that only the holdings of the majority opinion are binding on the lower courts; any other expressions of the Court’s perspective on a particular case are to be treated as mere dicta.‍‍ ‍

D.  Conclusion‍ ‍‍

The Supreme Court of the United States stands as the central institutional guardian of the Constitution within a structurally decentralized system of judicial review. Though Article III provided only a general blueprint for the federal judiciary, the Court’s most significant authority, the power of judicial review, was cemented through early jurisprudence and the structural logic of federal supremacy.‍ ‍

The Court’s structure and internal organization reflect a deliberate balance between independence and accountability. Life tenure, combined with the political safeguards inherent in the appointment and confirmation process, is designed to insulate the Justices from transient political pressures while preserving public confidence. Though the absence of formal qualifications may not bestow confidence, longstanding professional norms and Senate scrutiny have produced a Court consistently headed by some of the nation’s most highly respected and experienced legal practitioners. Throughout its history, the Court has consistently functioned as a remarkably efficient arbiter of constitutionality, continually evolving in its response to the demands of the United States’ complex federalist system of government.‍‍ ‍

III.  Juxtaposition and Comparison: Parallels, Divergences, and Lessons the Courts Might Learn from One Another‍ ‍

Today, around eighty percent of constitutions around the world empower their courts with some form of judicial review.[203] While the United States was the first country to implement a system of judicial review under a decentralized approach,[204] in recent years, the later-established Austrian model—involving a centralized, separate constitutional court—has surpassed the American model in terms of its influence on the structure of newly emerging democracies worldwide.[205] Concluding our paper, we will outline the differences and similarities in organizational structure and modes of operation of the two Courts and examine what each may learn from each other, and consider why the Austrian model has become more attractive to developing nations.‍ ‍

At the outset, it seems noteworthy that the regulatory framework governing each Court in Austria is set out in considerable detail in the Constitution, whereas in the U.S., neither the size of the Court nor the status of its justices is expressively defined in the Constitution. This is most likely attributable to the fundamental differences of being a civil law versus common law country.‍ ‍

Similarities between the Courts may be observed in the overall working environment and the apparatus assisting the judges or justices, particularly regarding the pivotal role of the law clerks. In other aspects, however, the U.S. Supreme Court appears to benefit from considerably more abundant administrative resources—one can easily imagine that the Members of the Austrian Constitutional Court would equally appreciate amenities such as an in-house barber or tailor.‍ ‍

Further distinction arises in relation to the formal requirements for being a constitutional judge or justice. The U.S. Constitution—at least in theory—affords significantly broader discretion for the selection of its Justices, whereas the Austrian Constitution prescribes specific qualifications concerning legal education and professional experience. In practice, however, both courts are composed of some of the most distinguished jurists in their respective countries (even though, unlike in Austria, there have been members of the United States Supreme Court who did not formally attend law school). While Justices of the Austrian Constitutional Court—at least on paper—exercise their mandate on a part-time basis, their counterparts in the United States serve in a full-time capacity. With regard to professional backgrounds prior to appointment, there is currently a noticeable predominance of university professors in Austria, whereas in the United States, prior judicial service is far more common.‍ ‍

One of the fundamental differences is the judges’ tenure. In Austria, Members of the Constitutional Court must retire upon reaching the age of seventy. In the United States, by contrast, the Justices are appointed for life. Moreover, in Austria, removal from office may be affected only by the Court itself, without the involvement of another branch of state power, whereas in the United States, removal is possible solely through an impeachment action by Congress. A similarity may again be identified in the appointment process: in both the U.S. and Austria, both the executive and legislative branches participate. Furthermore, the process is, in both jurisdictions—perhaps inevitably in the context of a constitutional court—shaped by a political dimension.‍ ‍

Another significant difference concerns the Court’s operational calendar. The U.S. Supreme Court operates on a continuous basis, subject only to a summer recess, whereas the Austrian Constitutional Court sits for only four sessions a year, spanning just weeks at a time.‍ ‍

Finally, important divergences exist with regard to procedural practice and deliberation. In the U.S., oral argument appears to play a central role, while proceedings before the Austrian Constitutional Court are predominantly decided on the basis of written submissions. Most decisively, however, the decision-making process differs: in Austria, voting behavior remains strictly confidential and publishing dissenting opinions are not allowed, whereas in the United States, the votes and opinions of the Justices are made public, and dissenting opinions are formally published.

Ultimately, while the U.S. model of constitutional review has endured in the United States, it pails in comparison to the broad international applicability of the Austrian model. In the U.S., the country’s legal structure needed to be tailored to address issues unique to the United States’s system of federalism—a system not commonly found in most emerging modern democracies. It stands to reason that a democracy spanning approximately 3.5 million square miles, or 9 million square kilometers, may require a unique system of judicial governance that is not wholly exportable around the world. By contrast, the Austrian model is fairly simple and straight forward: the Constitutional Court’s structure, composition, and operations are set out in plain terms in the country’s constitution.

‍ ‍

‍ ‍

* Tobias Huber, Univ. Ass., LL.B. (WU), LL.M. (WU); Ph.D. Candidate at Vienna University of Economics and Business, Institute for Austrian and European Public Law. Parts of this article are based on a presentation held at the ICON•S 2025 Annual Conference Brasília in July 2025. He is grateful to Thomas Kröll, Sebastian Lendl-Lewisch, Georg Lienbacher and Ulrich Wagrandl for discussions in preparation for that presentation and for valuable comments on this manuscript. He would also like to thank Steven Dabney for agreeing to co-author this article, as well as Casey Parker-Bell and Matthew Chaney, on behalf of the entire team of the KLJO, for making its publication possible. Steven Dabney, J.D. 2026, University of Kentucky J. David Rosenberg College of Law; B.A. Accounting, minors in Political Science and Philosophy 2023, Transylvania University. He would like to thank Tobias Huber for inviting his co-authorship of this article.

[1] Stanley L. Paulson, Constitutional Review in the United States and Austria: Notes on the Beginnings, 16 Ratio Juris 223, 223–24 (2003).

[2] Manfred Stelzer, An Introduction to Austrian Constitutional Law 71 (3rd ed. 2014).

[3] Ewald Wiederin, From the Federalist Papers to Hans Kelsen’s “Dearest Child”: The Genesis of the Austrian Constitutional Court, 76 ZÖR 313, 314 (2021).

[4]See Paulson, supra note 1.

[5] Wiederin, supra note 3, at 325–27. While legal literature may sometimes create the impression that Hans Kelsen was the “inventor” of the Austrian Constitutional Court (see Paulson, supra note 1, at 225 as an example), it has been shown that, although Hans Kelsen undoubtedly managed to connect earlier concepts and traditions to the final form of the Austrian Constitutional Court, preexisting institutions and debates also exerted significant influence on the “Austrian model”, see Wiederin, supra note 3, at 325–27 and Michael Holoubek & Ulrich Wagrandl, A Model for the World: The Austrian Constitutional Court Turns 100, 17 ICL J. 251, 253–59 (2023). However, Hans Kelsen not only contributed to the phrasing of the Austrian Constitution regarding the Constitutional Court but also continued to defend the concept of centralized constitutional jurisdiction ideologically. The related publication of his literary work in America is the reason why the term “Kelsen Court” is still used throughout the world to describe the original model of a centralized constitutional control; see Stelzer, supra note 2, at 72.

[6] Wiederin, supra note 3,at 327 (noting that “liebstes Kind” is German for “dearest child”).

[7] In Part I, references to “the Court” refer to the Austrian Constitutional Court.

[8] See Christoph GrabenWarter, The Austrian Constitutional Court, in 3 The Max Planck Handbooks in European Public Law – Constitutional Adjudication: Institutions, 20, 26 (Armin von Bogandy, Peter M. Huber, & Christoph GrabenWarter eds., 3rd ed. 2020).

[9] Anna Gamper & Francesco Palermo, The Constitutional Court of Austria: Modern Profiles of an Archetype of Constitutional Review, 3:2 J. Compar. L. 64, 65 (2008).

[10]Id.

[11] GrabenWarter, supra note 8, at 26.

[12] Holoubek & Wagrandl, supra note 5,at 252.

[13] Paulson, supra note 1, at 223–24.

[14]Id. at 224.

[15] Wiederin, supra note 3, at 314–17 (referring to No. 22 of the Federalist Papers, written by Hamilton: “Laws are a dead letter without courts to expound and define their true meaning and operation.” U.S. courts have even invalidated a handful of state laws even before the U.S. Constitution was adopted).

[16] For detailedinformation on the beginnings and characteristics on U.S. judicial review,see infra Section II.A.

[17]See Wiederin, supra note 3, at 316–17, 320–21 (regarding the influences of the American system on the early debates about constitutional jurisdiction in Austria and Germany).

[18] Holoubek & Wagrandl, supra note 5, at255.

[19]See Theo Öhlinger, The Genesis of the Austrian Model of Constitutional Review of Legislation, 16 Ratio Juris 206, 207–08.

[20] Gamper & Palermo, supra note 9, at 64.

[21] Paulson, supra note 1, at 223–24.

[22] Holoubek & Wagrandl, supra note 5, at 252.

[23] For background regarding the early, fundamental discussions about the Austrian Constitution and why the division of power was the main reason for which the Court was vested with the power to invalidate laws, see Ulrich Wagrandl, A Constitution Without Qualities? Three Narratives About Austrian Constitutional Law, in European Constitutionalism the Other Way Round 266, 277–80 (Jan Komárek, Birgit Aasa, Marina Bán, & Michał Krajewski eds., 2026).

[24] Walter Berka, Verfassungsrecht: Grundzüge des österreichischen Verfassungs-rechts für das juristische studium [Constitutional Law: Fundamentals of Austrian Constitutional Law for Law Students] 339 (Verlag Österreich, 8th ed. 2021).

[25]See Christoph GrabenWarter, Constitutional Law, in Introduction to the Law of Austria 1, 12 (Christoph GrabenWarter & Martin Schauer eds., 2015).

[26] Verfassungsgerichtshof [VfGH] [Constitutional Court], Oct. 11, 2001, G12/00 ua, https://www.ris.bka.gv.at/Dokumente/Vfgh/JFR_09988989_00G00012_01/JFR_09988989_
00G00012_01.html [https://perma.cc/2BKS-5TAU] (Austria).

[27]See Christoph Bezemek, A Kelsenian Model of Constitutional Adjudication, 67 ZÖR 115, 118 (2012).

[28] Ronald Faber, The Austrian Constitutional Court – An Overview, 2 Vienna Online J. on Int’l Const. L. 49, 50 (2008).

[29] Bezemek, supra note 27, at 119–20.

[30] Individuals may also request the review of a norm by means of a so-called “individual application”. This individual request for constitutional review was introduced in 1975, following the German example. As the Court has established in its case law, a person may contest the legality of a norm if it affects them and violated their rights if it is unlawful. The norm must thus actually interfere with the person’s rights and not only de facto affect their interests, see Bezemek, supra note 27, at 126–27.

[31] Faber, supra note 28, at 50.

[32] GrabenWarter, supra note 8, at 35.

[33] For background, particularly regarding historical context, see generally Öhlinger, supra note 19, at 209–13.

[34] “Members” is the official title for individuals serving on the Austrian Constitutional Court.

[35] The Austrian Federal Council is known natively as the “Bundesrat.”

[36] Bundes-Verfassungsgesetz [B-VG] [Federal Constitutional Act] art. 147, ¶ 2 (Austria); see also Bezemek, supra note 27, at 118.

[37] Holoubek & Wagrandl, supra note 5, at 261.

[38] Bundes-Verfassungsgesetz [B-VG] [Federal Constitutional Act] art. 144, ¶ 1 (Austria).

[39]Id. at art. 138, ¶ 1–2.

[40] A full overview of the Court’s areas of jurisdiction can be found at Bezemek, supra note 27, at 120–21.

[41] Bundes-Verfassungsgesetz [B-VG] [Federal Constitutional Act] art. 141, ¶ 1 (Austria).

[42]See id. at art. 142, ¶ 1.

[43]Id. at art. 137.

[44] Bezemek, supra note 27, at 119.

[45] Verfassungsgerichtshof Österreich [VfGH] [Constitutional Court], Activity Report 2024 7 (2024) (Austria) [hereinafter VfGH, Activity Report]; Verfassungsgerichtshof Österreich [VfGH] [Constitutional Court], Official Case Data, https://www.vfgh.gv.at/AktenanfallVfGH.csv [https://
perma.cc/L6P7-XAAC] (last visited Feb. 9, 2026) (Austria) [hereinafter VfGH, Case Data].

[46] VfGH, Case Data, supra note 45.

[47] VfGH, Activity Report, supra note 45, at 6.

[48] Gamper & Palermo, supra note 9, at 67.

[49]Id.

[50] Bundes-Verfassungsgesetz [B-VG] [Federal Constitutional Act] art. 147, ¶ 1 (Austria); for a detailed analysis and background discussion regarding the number of Members of the Court, see generally Holoubek & Wagrandl, supra note 5, at 262–66.

[51] Herbert Hausmaninger, The Austrian Legal System 140 (4th ed. 2011) (the Constitutional Court of Italy has fifteen members, the German has sixteen (who are, however working in a “twin court” of two permanent senates of eight members each), the Portuguese court has thirteen, the Belgian and the Spanish courts have twelve members each. The French Conseil constitutionnel has nine members, such as the U.S. Supreme Court).

[52] VfGH, Activity Report, supra note 45, at 8, 17.

[53] Holoubek & Wagrandl, supra note 5, at 270.

[54]Id.

[55] Bundes-Verfassungsgesetz [B-VG] [Federal Constitutional Act] art. 147, ¶ 3 (Austria).

[56] “The president, vice-president, six other members and three substitute members [of the Court] are appointed by the Federal President upon the proposal of the federal government; these members and substitute members must be selected from among judges, administrative civil servants and professors holding a chair in law at a university” Id. art. 134 ¶ 2.

[57] GrabenWarter, supra note 8, at 38.

[58] In Italy, Romania, and Slovakia, for example, a monopoly of jurists has been established as well. In France, however, no personal or professional qualifications are required to be a member of the Conseil constitutionnel (which should be noted is merely a court-like body and not a constitutional court in the classical sense). Bernd Wieser, Vergleichendes Verfassungsrecht [Comparative Constitutional Law] 353–54 (Verlag Österreich, 3d ed. 2024).

[59]See Members of the Constitutional Court, VfGH, https://www.vfgh.gv.at/verfassungsgerichtshof/
verfassungsrichter/members.en.html [https://perma.cc/U2FF-C2RL] (last visited Apr. 5, 2026) (listing Members of the Court, some of which are attorneys).

[60]Id.

[61] Bundes-Verfassungsgesetz [B-VG] [Federal Constitutional Act] art. 147, ¶ 2 (Austria).

[62]Id.

[63]Id.

[64]Id.

[65] Gamper & Palermo, supra note 9, at68.

[66]Id.

[67] GrabenWarter, supra note 8, at 38.

[68] Gamper & Palermo, supra note 9, at 68.

[69] GrabenWarter, supra note 8, at 38.

[70]Id. at 38–39.

[71] Bundes-Verfassungsgesetz [B-VG] [Federal Constitutional Act] art. 147, ¶ 4 (Austria).

[72]Id. at ¶ 5.

[73]See generally Theo Öhlinger, Der Fall Brandstetter und der Österreichische Verfassungsgerichtshof, Verfassungsblog (June 11, 2021), https://verfassungsblog.de/der-fall-brandstetter-und-der-osterreichische-verfassungsgerichtshof [https://perma.cc/8TSV-Q55M].

[74] Bundes-Verfassungsgesetz [B-VG] [Federal Constitutional Act] art. 147, ¶ 5 (Austria).

[75] Bezemek, supra note 27, at 119.

[76] Bundes-Verfassungsgesetz [B-VG] [Federal Constitutional Act] art. 147, ¶ 2 (Austria).

[77] Bezemek, supra note 27, at 119.

[78] GrabenWarter, supra note 8, at 39.

[79] Bezemek, supra note 27, at 119.

[80]Id.

[81] Bundes-Verfassungsgesetz [B-VG] [Federal Constitutional Act] art. 147, ¶ 6 (Austria).

[82] Verfassungsgerichtshof Österreich [VfGH] [Constitutional Court], January 2019: Precursor of Today’s Constitutional Court Established 100 Years Ago, https://www.vfgh.gv.at/medien/
100_Jahre_deutschoesterreichischer_Verfassungsgericht.en.php [https://perma.cc/727Q-MBPG] (last visited July 11, 2026) (Austria).

[83]Id.; Bundes-Verfassungsgesetz [B-VG] [Federal Constitutional Act] art. 147, ¶ 3 (Austria), version Bundesgesetzblatt [BGBl] No. 1/1920.

[84] On other aspects of the discussion on “depoliticizing” the Court, see Öhlinger, supra note 19, at 214–15.

[85] The initial intention was to align the retirement age of the Members of the Constitutional Court with that applicable to ordinary judges, who retire at sixty-five. In the course of the parliamentary debates, however, the age limit was ultimately set at seventy rather than sixty-five, in order to align it with the retirement age then applicable to university professors, who were likewise required to retire at seventy. See Stefan Leo Frank, Artikel 147 B-VG [Article 147 of the Federal Constitutional Act], in Rill-Schäffer-Kommentar Bundesverfassungsrecht [Rill-Schäffer Commentary on Federal Constitutional Law], para. 41 (Benjamin Kneihs & Georg Lienbacher eds., 17th ed. 2016).

[86]See id.

[87] Wieser, supra note 58, at 352.

[88]Mitglieder (Tabelle: 1919 bis heute) [Members (Table: 1919 to Present)], Verfassungsgerichts-hof, https://www.vfgh.gv.at/verfassungsgerichtshof/verfassungsrichter/mitglieder_tabelle.de.html [https://perma.cc/4SMR-EHER] (last visited March 19, 2026).

[89] This statutory retirement age applies, as a general rule, across all professions; the retirement age for university professors was also lowered in 1988. See Frank, supra note 85.

[90]See id.

[91] Convention for the Protection of Human Rights and Fundamental Freedoms art. 23, ¶ 6, Nov. 4, 1950, 213 U.N.T.S. 221, as amended by Protocol No. 11, May 11, 1994, S.E.T. No. 155.

[92]See Convention for the Protection of Human Rights and Fundamental Freedoms art. 23, ¶ 1, Nov. 4, 1950, 213 U.N.T.S. 221, as amended by Protocol No. 15, June 24, 2013, C.E.T.S. No. 213.

[93] Bundes-Verfassungsgesetz [B-VG] [Federal Constitutional Act] art. 87, ¶ 1, art. 147, ¶ 6 (Austria).

[94] Verfassungsgerichtshofgesetz 1953 [VfGG] [Constitutional Court Act] Bundes-gesetzblatt [BGBl] No. 85/1953, as amended, BGBl No. 92/2014, § 12 ¶ 1, https://www.
ris.bka.gv.at/Dokumente/Bundesnormen/NOR40166286/NOR40166286.pdf [https://perma.cc/
CR6T-772S] (Austria).

[95]Id. at§ 12 ¶ 2.

[96] Bundes-Verfassungsgesetz [B-VG] [Federal Constitutional Act] art. 147, ¶ 7 (Austria).

[97] Verfassungsgerichtshofgesetz 1953 [VfGG] [Constitutional Court Act] BUNDESGESETZBLATT [BGBl] No. 85/1953, as amended, BGBl I No. 50/2025, § 10 ¶ 1, https://ris.bka.gv.at/Dokumente/Bundesnormen/NOR40270776/NOR40270776.pdf [https:
//perma.cc/M6W7-FEB7] (Austria).

[98] GrabenWarter, supra note 8, at39.

[99] Hausmaninger, supra note 51, at 133.

[100] Holoubek & Wagrandl, supra note 5, at 267.

[101]Id.

[102]Id.

[103] Verfassungsgerichtshofgesetz 1953 [VfGG] [Constitutional Court Act] Bundesgesetzblatt [BGBl] No. 85/1953, as amended, BGBl I No. 16/2020, § 7 ¶ 1, https://www.ris.bka.gv.at/Dokumente/Bundesnormen/NOR40221570/NOR40221570.pdf [https://perma.cc/8WDA-KALY] (Austria).

[104] This is mostly the case in deliberations on matters of law where the legal issue has already been sufficiently clarified by the Constitutional Court’s prior case law.

[105] Verfassungsgerichtshofgesetz 1953 [VfGG] [Constitutional Court Act] Bundesgesetzblatt [BGBl] No. 85/1953, as amended, BGBl I No. 16/2020, § 7 ¶ 2, https://www.ris.bka.gv.at/Dokumente/Bundesnormen/NOR40221570/NOR40221570.pdf [https://perma.cc/8WDA-KALY] (Austria).

[106] Holoubek & Wagrandl, supra note 5, at 270; Faber, supra note 28, at 51.

[107]See Theo Öhlinger & Harald Eberhard, Verfassungsrecht [Constitutional Law] 514.

[108] Verfassungsgerichtshof [VfGH] [Constitutional Court], Oct. 2, 2021, B762/98, https://www.
ris.bka.gv.at/Dokumente/Vfgh/JFT_09978998_98B00762_00/JFT_09978998_98B00762_00.pdf [https://perma.cc/3LMZ-JQXU] (Austria).

[109] Holoubek & Wagrandl, supra note 5, at 267.

[110]See Hausmaninger, supra note 51, at 141.

[111] Verfassungsgerichtshofgesetz 1953 [VfGG] [Constitutional Court Act] Bundesgesetzblatt [BGBl] No. 85/1953, as amended, BGBl I No. 50/2025, § 2, https://
www.ris.bka.gv.at/Dokumente/Bundesnormen/NOR40270772/NOR40270772.pdf [https://
perma.cc/Y7YH-6J5E] (Austria).

[112] The Permanent Reporters can be, and usually are, reappointed. The Court’s Bench and its Judicial Activity, Verfassungsgerichtshof, https://www.vfgh.gv.at/verfassungsgerichtshof/
organisation/the_courts_bench.en.html [https://perma.cc/T37G-AF4M] (last visited on Oct. 7, 2025).

[113] Each Permanent Reporter is entitled to three law clerks; Members of the Court who do not have the status of a Permanent Reporter are not entitled to law clerks, see id.

[114]Id.

[115] Only the President of the Court and the newest Member to the Court, who has not yet been elected as Permanent Reporter, do not currently hold the position of a Permanent Reporter. Seeid.

[116] Holoubek & Wagrandl, supra note 5, at 269.

[117]Id.

[118] Hausmaninger, supra note 51, at 141.

[119] This is because any Member of the Court may request a matter to be dealt with in the regular plenary; Verfassungsgerichtshofgesetz 1953 [VfGG] [Constitutional Court Act] Bundesgesetzblatt [BGBl] No. 85/1953, as amended, BGBl I No. 16/2020, § 7 ¶ 2, https://www.ris.bka.gv.at/Dokumente/Bundesnormen/NOR40221570/NOR40221570.pdf [https://perma.cc/8WDA-KALY] (Austria).

[120] Holoubek & Wagrandl, supra note 5, at 269.

[121] GrabenWarter, supra note 8, at 42.

[122]Id.

[123] Verfassungsgerichtshofgesetz 1953 [VfGG] [Constitutional Court Act] Bundesgesetzblatt [BGBl] No. 85/1953, as amended, BGBl I No. 92/2014, § 31, https://www.ris.bka.gv.at/Dokumente/Bundesnormen/NOR40166291/NOR40166291.pdf [https://perma.cc/5VFG-LBVL] (Austria).

[124]Id.

[125]Id.

[126] Verfassungsgerichtshofgesetz 1953 [VfGG] [Constitutional Court Act] Bundesgesetzblatt [BGBl] No. 85/1953, as amended, BGBl I No. 24/2017, § 19 ¶ 3, https://www.ris.bka.gv.at/Dokumente/Bundesnormen/NOR40189027/NOR40189027.pdf [https://perma.cc/6LW2-23RQ] (Austria).

[127] Verfassungsgerichtshofgesetz 1953 [VfGG] [Constitutional Court Act] Bundesgesetzblatt [BGBl] No. 85/1953, as amended, BGBl I No. 33/2013, § 30 ¶ 1, https://www.ris.bka.gv.at/Dokumente/Bundesnormen/NOR40147816/NOR40147816.pdf [https://perma.cc/XA5X-NTWB] (Austria); Faber, supra note 28, at 49.

[128] Faber, supra note 28, at 49.

[129]About the Court, Sup. Ct. U.S., https://www.supremecourt.gov/about/about.aspx [https://perma.cc/SMY2-PNKE] (last visited Apr. 6, 2026).

[130] U.S. Const. art. III, § 1.

[131]The History of the Supreme Court of the United States, U.S. Senate Comm. on the Judiciary, https://www.judiciary.senate.gov/nominations/supreme-court/history [https://
perma.cc/JCN6-4UWJ] (last visited Apr. 5, 2026).

[132]Id.

[133] Richard L. Wilson, Judicial Review and the Supreme Court, EBSCO (2023), https://www.ebsco.com/research-starters/law/judicial-review-and-supreme-court [https://perma.cc/3Q2Y-3Z2Y].

[134] Marbury v. Madison, 5 U.S. 137, 177–80 (1803).

[135] Julie Silverbrook, Marbury v. Madison, Bill Rts. Inst., https://billofrightsinstitute.org/
essays/marbury-v-madison [https://perma.cc/DSG3-CSQH] (last visited Apr. 5, 2026).

[136] P. Allan Dionisopoulos & Paul Peterson, Rediscovering the American Origins of Judicial Review: A Rebuttal to the Views Stated by Currie and Other Schools, 18 J. Marshall L. Rev. 49, 74 (1984).

[137] Wilson, supra note 133.

[138] U.S. Const. art. VI.

[139] Alvin B. Rubin, Judicial Review in the United States, 40 La. L. Rev. 67, 71 (1979).

[140] Samantha Lalisan, Classifying Systems of Constitutional Review: A Context-Specific Analysis, 5 Ind. J. Const. Design, Apr. 13, 2020 at 1, 4.

[141]Id.

[142] Rubin, supra note 139, at 70.

[143]Comparing Federal & State Courts, Admin. Off. U.S. Cts., https://www.uscourts.gov/
about-federal-courts/court-role-and-structure/comparing-federal-state-courts [https://perma.cc/
WL8Y-PMN3] (last visited Nov. 29, 2025).

[144]Id.

[145]About the Supreme Court, Admin. Off. U.S. Cts., https://www.uscourts.gov/about-federal-
courts/educational-resources/about-educational-outreach/activity-resources/about [https://perma.
cc/DF3M-48MN] (last visited Nov. 29, 2025).

[146]Id.

[147]Co-Equal Leader: The Role of the Chief Justice of the United States, Sup. Ct. Hist. Soc’y, https://supremecourthistory.org/supreme-court-civics-resources/role-of-chief-justice-of-the-united-states [https://perma.cc/UKY4-JVW2] (last visited Nov. 29, 2025).

[148] Elizabeth Shaw, Staff of the Court, EBSCO (2022), https://www.ebsco.com/research-starters/law/staff-court [https://perma.cc/SM9Y-Y9HY].

[149]Id.

[150]About the Court,supra note 129.

[151] Shaw, supra note 148.

[152]Id.

[153]Id.

[154]FAQs - General Information, Sup. Ct. U.S., https://www.supremecourt.gov/about/
faq_general.aspx [https://perma.cc/CKD2-EVYS] (last visited Nov. 29, 2025).

[155]Id.

[156]Id.

[157] Barry J. McMillion, Cong. Rsch. Serv., R44235, Supreme Court Appointment Process: President’s Selection of a Nominee 9 (2026).

[158] U.S. Const. art. II, § 2, cl. 2.

[159]Id.

[160]Co-Equal Leader: The Role of the Chief Justice of the United States, supra note 147.

[161]Id.

[162]The U.S. Supreme Court Nomination Process: An Explainer, RockTheVote, https://www.
rockthevote.org/explainers/the-u-s-supreme-court-nomination-process [https://perma.cc/W6ZC-
BP9U] (last visited Nov. 29, 2025).

[163] McMillion, supra note 157, at 9.

[164]Id. at 10.

[165]Id.

[166] Solcyré Burga, How Impeaching a Supreme Court Justice Works, TIME (July 12, 2024, at 10:07 ET), https://time.com/6997811/impeaching-supreme-court-justice-judges-history [https:
//perma.cc/DM62-2CRE].

[167]Id.

[168] Berman Milton, Impeachment of Judges and the Supreme Court’s Role, EBSCO (2023), https://www.ebsco.com/research-starters/law/impeachment-judges-and-supreme-courts-role [https://perma.cc/FNF9-WPRE] (“Unlike presidential impeachments where the chief justice presides, the vice president or president pro tem of the Senate presides over judicial impeachments”).

[169]Id.

[170] Burga, supra note 166.

[171] Maggie Jo Buchanan, The Need for Supreme Court Term Limits, Ctr. for Am. Progress (Aug. 3, 2020), https://www.americanprogress.org/article/need-supreme-court-term-limits [https://perma.cc/JPT8-SFCQ].

[172] James Duff, Still at Work: How the Justices Spend Their Summer Months, Sup. Ct. Hist. Soc’y (July 21, 2025), https://supremecourthistory.org/scotus-scoops/still-at-work-how-the-justices-spend-their-summer-months/#:~:text=Each%20year%20the%20Supreme%20Court's,take%203%2D
month%20summer%20vacations [https://perma.cc/CU5Y-3BK8].

[173] Rory Little, The Justices Have the Easiest Job in the Judiciary, SCOTUSBlog (Aug. 21, 2025), https://www.scotusblog.com/2025/08/the-justices-have-the-easiest-job-in-the-judiciary/#:~:text=
By%20tradition%20stretching%20back%20generations,teaching%2C%20vacation%2C%
20and%20renewal [https://perma.cc/8277-D5XM].

[174]Id.

[175]Supreme Court Procedures, Admin. Off. U.S. Cts., https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/supreme-court-procedures [https://perma.cc/9LA8-XZUK] (last visited Nov. 29, 2025).

[176]Id.

[177]Id.

[178] Amy Howe, 2020 Election Litigation Tracker, SCOTUSBlog (Apr. 6, 2021), https://www.
scotusblog.com/election-law-explainers/the-certiorari-process-seeking-supreme-court-review [https://
perma.cc/CH77-NTAR].

[179] Leah Ward Sears, Why and When to File an Amicus Brief, Smith, Gambrell & Russell, https://www.sgrlaw.com/ttl-articles/why-and-when-to-file-an-amicus-brief [https://perma.cc/VZZ4-GNHE] (last visited Feb. 13, 2026).

[180] Winston Bowman, The Supreme Court's Rule of Four, Fed. Jud. Ctr., https://
www.fjc.gov/history/spotlight-judicial-history/rule-four [https://perma.cc/3MUH-WELK] (last visited Nov. 29, 2025).

[181]About the Supreme Court, supra note 145.

[182] Alicia Bannon, Stephen Spaulding & Harry Black, The Supreme Court “Shadow Docket” Explained, Brennan Ctr. for Just. (Feb. 13, 2026), https://www.brennancenter.org/our-work/
research-reports/supreme-court-shadow-docket [https://perma.cc/J87A-8XER].

[183] Erwin Chemerinsky, Why the Shadow Docket Should Concern Us All, SCOTUSBlog (Aug. 4, 2025), https://www.scotusblog.com/2025/08/why-the-shadow-docket-should-concern-us-all [https:
//perma.cc/YPQ3-X8VL].

[184]Id.

[185]Id.

[186]Supreme Court Procedures, supra note 175.

[187]Id.

[188]Id.

[189]Id.

[190]Id.

[191]Id.

[192]Id.

[193] Dave Roos, Steps the Supreme Court Takes to Reach a Decision, History.com (May 28, 2025), https://www.history.com/articles/supreme-court-decision-cases [https://perma.cc/2KKK-PKXY].

[194]Id.

[195]Id.

[196]Supreme Court Procedures, supra note 175.

[197]Id.

[198]SeeUnderstanding Stare Decisis, A.B.A. (Dec. 16, 2022), https://www.americanbar.org/
groups/public_education/publications/preview_home/understand-stare-decisis [https://perma.cc/
FE6A-S8SE].

[199]Supreme Court Procedures, supra note 175.

[200]Id.

[201]Id.

[202]Id.

[203] Holoubek & Wagrandl, supra note 5, at 252.

[204] Paulson, supra note 1, at 223.

[205] Holoubek & Wagrandl, supra note 5, at 252.

‍ ‍

A Sherbert Colored Lens: Apache Stronghold and the Uphill Battle for The Recognition of a Substantial Burden For Indigenous Plaintiffs (Print Vol. 114 Issue 3)

A Sherbert Colored Lens: Apache Stronghold and the Uphill Battle for The Recognition of a Substantial Burden For Indigenous Plaintiffs

Download a PDF

By: Emma P. Collins

University of Kentucky J. David Rosenberg College of Law Student, Emma P. Collins, argues for a return to the Sherbert balancing test for free exercise claims in response to the burden Indigenous religions face in trying to protect their constitutional right to freely exercise their religion. 

Enforcement Mechanisms for Supreme Court Ethics Codes: Applying State Models to SCOTUS (Print Vol. 114 Issue 3)

Enforcement Mechanisms for Supreme Court Ethics Codes: Applying State Models to SCOTUS

Download a PDF

By: Katherine Nipper

University of Kentucky J. David Rosenberg College of Law Student, Katherine Nipper, proposes an enforcement mechanism for the Supreme Court of the United States’ Code of Conduct, and uses state models as a basis for the proposal.

Hope in the Holler: How Eminent Domain Can Bring Economic Justice To Central Appalachia (Print Vol. 114 Issue 3)

Hope in the Holler: How Eminent Domain Can Bring Economic Justice To Central Appalachia

Download a PDF

By: Matthew B. Chaney

University of Kentucky J. David Rosenberg College of Law Student, Matthew B. Chaney, argues that the use of eminent domain under the Fifth Amendment’s Takings Clause provides a viable legal mechanism for revitalizing Central Appalachia. The note proposes that through eminent domain, state and local governments should condemn underutilized land in order to promote public-oriented redevelopment and address longstanding economic injustice in the region.

Much Ado About Nothing: The Effect of the “Nullity Rule” on Purported Pro Se Litigants in Federal Court (Print Vol. 114 Issue 2)

Much Ado About Nothing: The Effect of the “Nullity Rule” on Purported Pro Se Litigants in Federal Court

Download a PDF

By: John T. Lambert

University of Kentucky J. David Rosenberg College of Law student, John T. Lambert, calls for abolition of the nullity rule after examining the circuit split between the Eighth Circuit in Jones ex rel. Jones v. Correctional Medical Services and the Eleventh Circuit’s decision in Ireiele v. Griffin.

Consumer Bankruptcy: A “Gem” of the Legal Profession but a Diamond in the Rough (Print Vol. 114 Issue 2)

Consumer Bankruptcy: A “Gem” of the Legal Profession but a Diamond in the Rough

Download a PDF

By: Tori Harris

University of Kentucky J. David Rosenberg College of Law student, Tori Harris, proposes a new––less expensive and more streamlined––subchapter designed to be effective for those with low income or small debts.

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

Download a PDF

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

Download a PDF

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

Download a PDF

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).

The Supreme Court's Goldilocks: Why the Major Questions Doctrine Is the Ideal Compromise Between Two Unattractive Extremes (Print Vol. 114 Issue 1)

The Supreme Court's Goldilocks: Why the Major Questions Doctrine Is the Ideal Compromise Between Two Unattractive Extremes

Download a PDF

By: Bradley P. Simpson

University of Kentucky J. David Rosenberg College of Law student, Bradley Simpson, argues that the Major Questions Doctrine, notwithstanding its interpretive flaws, strikes an appealing balance between two extremes: an administrative state incapable of acting versus an administrative state left unchecked.

Exposing Car Dealerships’ Final Hidden Sales Con: A Call for the Disclosure of Interest Rate Markups When “Helping” Buyers with Indirect Financing (Print Vol. 114 Issue 1)

Exposing Car Dealerships’ Final Hidden Sales Con: A Call for the Disclosure of Interest Rate Markups When “Helping” Buyers with Indirect Financing

Download a PDF

By: John C. Simms

University of Kentucky J. David Rosenberg College of Law student, John Simms, argues that car dealerships routinely and lawfully exploit consumers by secretly marking up interest rates in indirect auto financing, a practice that remains undisclosed despite imposing significant financial harm—especially on subprime and marginalized borrowers. It concludes that existing legal justifications for nondisclosure are outdated and flawed, and calls for regulatory reform requiring dealers to disclose interest rate markups to restore transparency, bargaining power, and consumer protection.

From a Reactive to a Proactive FDA Risk Assessment in Tampon Regulation

From a Reactive to a Proactive FDA Risk Assessment in Tampon Regulation

Download a PDF

Leigha Whitridge*

Introduction

The consumption of  personal care products, cosmetics, and cleaning products exposes Americans to a wide variety of potentially harmful chemicals on a daily basis.[1] Recently, people are asking the question we often do not pause to consider: what is in this?[2] We can all imagine the list of ingredients on the back of an unassuming product like a bag of chips, a stick of deodorant, or a bottle of household cleaner. We do not know what many of these ingredients are or even how to pronounce them. The Food and Drug Administration (FDA) regulates products that reach the hands and homes of consumers,[3] but a closer look into what substances products contain is needed.

This consumer skepticism should apply to menstrual products, especially considering recent data.[4] In June of 2024, researchers at the University of California Berkeley conducted a study regarding the presence of certain chemicals and heavy metals in tampons,[5] which has stirred discussion regarding tampon regulation.[6] The study found the presence of numerous toxic substances, including lead, within tampons.[7] Even more surprising than these findings is that this study is the first of its kind.[8]

This Note argues that before a tampon can be marketed and placed on store shelves, the risk assessment within the rules and guidelines governing tampon manufacturing and marketing should be expanded to include testing for the presence of lead and, in the event that lead is present, adequate warnings. Additionally, by expanding regulations, the FDA could address issues associated with the 510(k)-clearance process and incentivize tampon manufacturers to innovate safer products. Part I explains the history of tampons and current tampon regulation under the FDA. Part II discusses the findings of and reactions to the UC Berkeley study. Part III argues for expanding the FDA’s risk assessments to include potential lead exposure through tampon use and recommends mandatory warning labels.  

I.                    Tampons and Current FDA Regulation

A.     Tampons

Menstruation, the shedding of the uterine lining, begins a woman’s menstrual cycle.[9] The menstrual cycle “prepares [a woman’s] body for possible pregnancy.”[10] A woman’s hormone production heavily influences her menstrual cycle, which may vary each cycle.[11] The menstrual cycle is composed of four phases, each of which performs a particular function in a woman’s reproductive cycle.[12] Menstrual bleeding occurs every twenty-one to thirty-five days and lasts roughly between two to seven days.[13]

A tampon is “a device that is a plug made of cellulosic or synthetic material that is inserted into the vagina and used to absorb menstrual . . . discharge [commonly referred to as a period].”[14] Tampons existed in Egyptian society, and, historically, women used sponges or wool. [15] Tampons were not popular in the United States until the 1930s.[16] In the 1980s, tampons became associated with Toxic Shock Syndrome (TSS), a potentially fatal illness.[17] Today, tampons range in size and level of absorbency, including light, regular, super, and plus.[18] Over the course of a lifetime, women spend about 2,372 days (roughly six and a half years) menstruating and use up to 11,000 tampons during this time.[19]

B.     The FDA Framework

The Federal Food, Drug, and Cosmetic Act (FFDCA) grants the FDA authority to create and enforce rules regulating a wide range of products, including food, drugs, and cosmetics.[20] The FDA’s mission is to “[protect] the public health by ensuring the safety, efficacy, and security of human . . . medical devices; and by ensuring the safety of our nation’s food supply, cosmetics, and products that emit radiation.”[21] The agency’s mission also includes “[speeding] innovations that make medical products more effective, safer, and more affordable and by helping the public get the accurate, science-based information they need to use medical products . . . to maintain and improve their health.”[22] In order to enforce the FFDCA and carry out its mission, the FDA promulgates rules that are legally enforceable and treated as law.[23] Furthermore, the FDA creates guidances in order to inform industry, the public, and its own staff of the agency’s thoughts on product regulation.[24] These guidelines aide industries in complying with rules and explore topics such as device design, testing, manufacturing, and inspections.[25]

The FDA regulates medical devices.[26] The agency categorizes medical devices into three classes (in order of low to high risk of user harm: I, II, and III).[27] Medical devices are cleared either through a Premarket Approval (PMA) or a 510(k) Premarket Notification.[28] Class III medical devices must undergo the PMA process, which is more burdensome than the 510(k) comparative process.[29] In the PMA process, manufacturers must demonstrate “reasonable assurance that the device is safe and effective.”[30] The 510(k) process consists of traditional and abbreviated 510(k) applications.[31] The abbreviated 510(k) process is meant to “streamline and expedite” the review process.[32] Through this process, manufacturers demonstrate substantial equivalence to a “predicate device,” which is a previously cleared device.[33] Substantial equivalence is defined as “having the same intended use and the same technological characteristics as a predicate device, or different technological characteristics that do not raise different questions of safety or effectiveness.”[34] To show “substantial equivalence,” manufacturers provide information that shows their medical device has the same intended use and the same technological characteristics as the predicate device.[35] After the FDA “finds a device substantially equivalent to the predicate” device, the device may be cleared for the market.[36] Under the 510(k) process, “premarket inspections of how devices were manufactured are generally not required . . . postmarket studies are not required by FDA as a condition of clearance; and . . . FDA has limited authority to rescind or withdraw clearance if a 510(k) device is found to be unsafe or ineffective.”[37] As a result of the comparative nature of the 510(k) process, manufacturers are not required to include clinical studies or to demonstrate independent safety or effectiveness of the product.[38]

C.     Tampon Regulation

Tampons are Class II medical devices and subject to few rules, but nowhere do the rules mention testing for or disclosing the presence of lead.[39] Class II medical devices represent medical devices that pose a “moderate to high risk” of user harm.[40] Currently, tampon manufactures must include labels that clearly alert consumers to the risk of TSS, as well as the tampons absorbency level.[41] Before a tampon is marketed, the device must meet 510(k) Premarket Notification requirements and performance standards.[42]

The FDA states that before marketing a device, tampon manufacturers should meet these 510(k) requirements to comply with the FFDCA and receive FDA clearance based on “substantial equivalence.”[43] If the manufacturer meets the “substantial equivalence” standard, the FDA may clear the product to be sold.[44] Tampon manufacturers may use the traditional 510(k) clearance route or the abbreviated 510(k) process.[45] The abbreviated 510(k) process allows tampon manufacturers to submit a summary report “in lieu of detailed information about testing of the device.”[46] The summary report includes a description of the device, design, a risk assessment, and a description of tests used.[47] Tampon manufacturers also must submit information required for a traditional 510(k) submission.[48] These informational requirements are embodied in the FDA’s rules and include the following:

The device name . . .. The [device] class . . .. Proposed labels, labeling, and advertisements sufficient to describe the device, its intended use, and the directions for its use … [and] a statement indicating the device is similar to and/or different from other products of comparable type in commercial distribution, accompanied by data to support the statement. This information may include an identification of similar products, materials, design considerations, energy expected to be used or delivered by the device, and a description of the operational principles of the device.[49]

The Guidance for Industry and FDA Staff Menstrual Tampons and Pads: Information for Premarket Notification Submissions (510(k)s) (Menstrual Tampon Guidelines) assists tampon manufacturers in meeting 510(k) submission requirements.[50] Concerning biocompatibility testing, The Menstrual Tampon Guidelines direct manufacturers to another FDA guidance: the Use of International Standard ISO-10993, Biological Evaluation of Medical Devices Part-1: Evaluation and Testing (ISO Guidelines).[51] Notably, the Menstrual Tampon Guideline’s chemical concerns focus on pesticide residue, and the guidance states that “[if] identical materials are used in a predicate device with the same type and duration of user contact, you may identify the predicate device in lieu of providing biocompatibility testing in your submission.”[52] The FDA created the ISO Guidelines to “assist industry in preparing . . . Premarket Notifications (510(k)s) . . . requests for medical devices that come into direct contact or indirect contact with the human body in order to determine the potential for an unacceptable adverse biological response.”[53] Manufacturers approach biocompatibility testing within “the framework of a risk management process” and complete a risk-benefit assessment that identifies potential risks, compiles available information, and addresses missing information.[54] Potential risks of any medical device include “chemical toxicity, unacceptable biological response to physical characteristics of the device, and aspects of manufacturing and processing that could alter the physicochemical characteristics of the device, which could lead to changes in the biocompatibility response.”[55] After potential risks are identified, the manufacturer submits a risk assessment for the FDA’s review.[56]

D.    Concerns with the 510(k) Clearance Process

A risk-based clearance pathway allows the FDA to devote resources to investigating higher-risk medical devices.[57] However, the lack of clinical data in 510(k) applications may impede confirming the safety of new devices.[58] If a predicate device is later found to be unsafe, a device cleared based on comparison to the deficient device may likely be unsafe as well.[59] Over time, slight differences between predicate and new devices may aggregate, resulting in a device that is substantially different from the original predicate device and possibly unsafe.[60] The Institute of Medicine issued a report in 2011 that pointed out some of these weaknesses in the 510(k) clearance process and posed a new regulatory system for medical devices.[61] The FDA did not adopt these proposed amendments, but eventually the agency encouraged manufacturers to provide “real-world evidence” during market clearance.[62] Post-market regulations have also been introduced to compensate for these weaknesses, but the “substantial equivalence” standard still guides the 510(k) clearance process.[63] While high risk medical devices are more likely to be recalled than a medical device cleared through the 510(k) process, the vast majority of recalls are for medical devices cleared through the 510(k) process.[64] The sheer number of medical devices cleared through the 510(k) process raises public safety concerns.[65]

Congress and the FDA encourage the “least burdensome approach” to risk assessment, which includes the abbreviated 510(k) pathway.[66] This approach allows manufacturers to provide “the minimum amount of information necessary to adequately address a relevant regulatory question or issue through the most efficient manner at the right time.”[67] The 510(k) premarket notification applications for tampons appear to be fairly bare bones.[68] Additionally, the Menstrual Tampon Guidelines, per the least burdensome approach, do not require clinical studies.[69] When clinical studies are involved, they revolve around irritation, allergies, effects on vaginal microflora, abrasions, ulcerations, lacerations, and residual fiber retention, not the presence of lead.[70]

A tension exists between ensuring accessibility of tampons in a large market and prioritizing the safety of products.[71] The term “period poverty” refers to the inability to obtain menstrual products and a lack of education regarding menstruation.[72] Women in low-income households, unhoused women, and women in college are disproportionately affected by period poverty.[73] While many women struggle to afford menstrual products, an increased cost of tampon production due to expanded regulations may exacerbate this issue.[74] The FDA’s “least burdensome” approach and attempts to “streamline and expediate” marketing medical devices through the 510(k) clearance process are virtuous efforts. Balance must be kept in perspective while researchers and legislatures move forward with proposed recommendations to address toxic substances found within tampons.

II.  The UC Berkeley Study and Safety Concerns with Lead

A.     Findings from the UC Berkeley Study

The UC Berkeley study tested thirty tampons, ranging in materials used.[75] The study included both organic and non-organic tampons.[76] The researchers omitted brand names of products included in the study but noted they were popular.[77] Heavy metals (including, but not limited to, lead, arsenic, chromium, nickel, barium, cadmium, mercury, and vanadium) were present in tested tampons.[78] The majority of women who menstruate (fifty-two to eighty-six percent) use tampons, making this a pressing issue.[79] The study found that women may use more than 7,400 tampons during their lifetime, which is a conservative estimate considering other findings.[80] The study acknowledges its limitations, including the small sample size and inability to explore differences in “absorbency, lot number, brand, or manufacturer.”[81] The study did not address vaginal absorbency or the ability of metals to leach into the body’s systematic circulation through the lining of the vagina.[82] Researchers concluded that more standardization may be necessary during tampon production.[83]

B.     Lead and Effects of Exposure

Lead is one of the most notable metals found in the UC Berkeley study and was present in all tampons tested.[84] The presence of lead in tampons is concerning since lead has known negative health effects and previous research has concluded that there is no safe level of exposure to lead.[85] Additionally, lead may be stored within bones for decades.[86] According to the UC Berkely study, even minimal exposure to lead “can result in neurobehavioral impacts in adults and children, including decreased cognitive function such as impaired attention, memory, and learning ability.”[87] Lead exposure in adults can also cause high blood pressure, joint pain, memory and focus deficiencies, and miscarriage, premature birth, stillbirth, or harm to a woman’s reproductive health.[88] In general, heavy metal exposure has also been linked with infertility.[89] The UC Berkeley study also raises matter for concern considering some women begin using menstrual products in adolescence.[90] Most women begin their menstrual cycle between the ages of ten to fifteen.[91] Children also absorb more lead when exposed, and exposure may negatively affect a child’s cardiovascular and reproductive systems, decrease kidney function, and increase blood pressure.[92]

C.     Responses to the UC Berkeley Study

Following the study, members of Congress called for greater research and standards in tampon regulation.[93] The FDA promptly announced and published its research initiatives.[94] The FDA’s report included a literature review of nine articles discussing the presence of certain medals and substances in tampons.[95] The agency admitted to “regulatory science gaps and challenges” and “[a] need for tools/methods . . . that facilitate and improve consistency of toxicological risk assessments for medical devices” and adequate “guidelines for evaluating biocompatibility of medical devices . . ..”[96] Despite the FDA’s lack of understanding of a “worst-case scenario of metal exposure” during tampon use, it deems previously marketed tampons as safe.[97]

Not everyone found cause for alarm following the UC Berkeley study.[98] The American College of Medical Toxicology (ACMT) found that the study may promote unnecessary panic.[99] The ACMT noted that in order to understand health effects of tampon use, “we would need to understand how the dose delivered [through tampon use] compares to the doses where adverse effects are expected to occur.”[100] The report used estimates to conclude that it’s unlikely the amount of lead absorbed from a tampon would be harmful.[101] Nevertheless, the report still recommended further research to “understand whether absorbed doses of metals . . . approach harmful concentrations.”[102] Another hesitant reaction claimed that the study was inflammatory and exposure to metals through a single, light absorbency tampon appears to be “negligible.”[103] The UC Berkeley researchers characterized this argument as “misleading,” “premature,” and “unjustified” [104] for the following reasons:

(1) Light absorbency tampons are not commonly used. [Larger absorbency ranges] are more common. (2) Menstruators who use tampons typically use 3–4 a day, ranging from 2 to . . . 18 . . . (3) No safe level of [lead] exposure exists no matter the route of exposure. (4) Chemical absorption has been shown to be more efficient via the vaginal route compared to the oral route of exposure. In particular, unlike the oral exposure route, chemicals absorbed vaginally bypass first-pass metabolism by the liver and directly enter systemic circulation . . . [Concluding there is] negligible risk based on exposure to a single light tampon is scientifically unsupported.[105]

The UC Berkeley study simply emphasized the need for continuing research.[106] It cannot be said that the potential lead exposure is “negligible,” nor can it be said that the potential lead exposure is currently harming tampon users.[107] However, it can be said that tampon use is a potential source of lead exposure throughout a woman’s lifetime.[108] We cannot do nothing with this information simply because the full picture is not clear. A potential risk is a risk, nonetheless.

III.  Solutions

A.     Updating the Rules and Guidelines

i.                    Updating Risk Factors Within the Guidelines

First, relevant guidelines should include lead exposure as a risk associated with tampon use. Manufacturers should be advised to address this risk during the clearance process. The Menstrual Tampon Guidelines contain a chart listing risks associated with tampon use, as well as corresponding mitigation strategies.[109] These risks include adverse vaginal injury, vaginal infection, TSS, and adverse tissue reaction.[110] Labeling is a recommended mitigation strategy for all identified risks in the table.[111] Other concerns associated with tampons include chemical residues, absorbency ranges, the growth of bacteria that may cause TSS, irritation, allergies, effects on vaginal microflora, abrasions, ulcerations, lacerations and residual fiber retention.[112] However, the presence of lead is not identified anywhere within the Menstrual Tampon Guidelines or in the table of identified risks.[113] Lead exposure should be included in this chart of identified risks, and labeling warnings should be the corresponding mitigation strategy.  

Additionally, the ISO Guidelines state that unnecessary testing may be avoided considering available literature, clinical experiences, animal study experiences, consensus standards, and comparison to previously cleared devices. [114] Similar to the gaps identified in the 510(k) clearance process, a comparative analysis to previously marketed devices provides manufacturers with a pathway to conclude that biocompatibility has been properly addressed without independent clinical studies or source material testing for the presence of lead.[115] Since lead is naturally occurring in soil or may be added to tampons during the manufacturing process, the lead content in source material used in a new device may differ substantially from a predicate device.[116] Therefore, comparing a new device to a previously marketed device may not establish the absence of lead in the new device. In order to ensure the safety of tampons and alert consumers of the presence of lead, if needed, comparison to a predicate device should not be considered in a risk-based analysis of biocompatibility.

ii.                  New Legally Binding Warnings

Although the guidelines appear robust, they are not legally binding.[117] The FDA should mandate lead disclosures in the event lead is discovered within a tampon, describing the possible presence of lead and stating that lead is associated with negative health effects. This would provide women with a bare minimum understanding of possible lead exposure from tampon use.

A more informed decision may result in women purchasing alternative menstrual products rather than blindly purchasing products that may contain lead. This would offer greater decision-making power to women who suffer from reproductive conditions with unknown etymologies, those who want to avoid lead exposure, and those who want to control what substances enter their body. This proposed change incentivizes innovation. Requiring tampon manufacturers to disclose the presence of lead in their products would create a need in the market for a “lead-free” tampon and incentivize other manufacturers to create a novel tampon. If women gravitate towards other menstrual products, this may also place pressure on tampon manufacturers to improve the quality of tampons and produce lead-free products. In turn, the FDA would further its mission of accelerating the innovation of medical devices to protect the public health.[118]

B.     More Proactive Risk Assessment is Needed

i.                    Recalling the History of Menstrual TSS

A more proactive approach to risk is at the heart of this Note. In the face of the unknown, the FDA should not wait to find out the possible ramifications of lead exposure through tampon use before requiring manufacturers to inform consumers of what they are purchasing. While there are arguments that exposure to lead through tampon use may not be harmful,[119] the unknown health effects of lead exposure through tampon use presents a risk in itself.[120] The sphere of women’s health is full of unknowns and a lack of research.[121] Some health conditions that women suffer from, including endometriosis, uterine fibrosis, and ovarian cancers do not have known causes.[122] The uncertainty surrounding these etymologies and the unknown absorbency of vaginal and uterine tissues are strong reasons to create rules giving women an informed decision when purchasing menstrual products. While burdensome approaches like complete disclosure of every chemical or ingredient within tampons may not be possible, the FDA’s “least burdensome approach,” should not be the attitude towards this facet of tampon regulation.  

This is not the first time that tampon use has been under scrutiny.[123] TSS emerged in the 1970s, but awareness of the illness grew in the 1980s.[124] The illness presents as a multitude of symptoms, including “high fever, sunburn-like rash, desquamation, hypotension, and abnormalities in multiple organ systems.”[125] In the context of menstruation, a bacteria,  staphylococcus aureus, grows within a tampon, “cross[es] the vaginal epithelium, enter[s] systemic circulation,” and causes illness.[126] In the 1980s, studies determined that the overwhelming majority of TSS cases began during menstruation, and TSS was associated with continuous use of tampons and use of high absorbency tampons.[127] By the end of 1980, thirty-eight of the 772 women who suffered from menstrual TSS lost their lives.[128] In 1982, the FDA required manufacturers to produce labels warning consumers of TSS risks, pointing to the FFDCA, which calls for regulators to “prevent harm, even if the regulator is less than certain that harm is otherwise inevitable.” [129] These requirements did not include standardized absorbency ranges.[130] The terms “super” or “regular” varied between brands, so women were unable to compare absorbency ranges between brands.[131] In 1987, the CDC published a study that established a positive correlation between tampon absorbency size and the risk of TSS.[132] On August 20, 1987, the Public Citizen Health Research Group (Public Citizen) petitioned for the FDA to timely address the lack of industry-wide standardized absorbency ranges.[133] The FDA responded with proposed regulations to standardize absorbency ranges between brands.[134] While a rule was proposed, the FDA received comments and made amendments.[135] In 1989, Public Citizen filed suit, seeking rules to be enacted at once while the FDA was taking “unreasonable delay” in enacting “long-needed regulations.”[136] On August 28, 1989, the court granted Public Citizen declaratory and injunctive relief, ordering the FDA to enact a rule within two months.[137] The presiding judge characterized the FDA as “lethargic” and noted the agency’s failure in executing its mission to protect the health of the public.[138] A final rule was issued effectuated on March 1, 1990.[139] These labeling requirements alerted women of absorbency levels and terms identifying the level of absorbency indicated the same level of absorbency across brands.[140]

The history of TSS illustrates that warnings labels do prove useful. By 1990, the number of TSS cases decreased dramatically.[141] And in 2018, cases continued to decrease to a rate of 1 per 100,000 women.[142] The decrease in cases is linked to the production of lower absorbency tampons and the FDA’s new labeling requirements.[143] Tampon packaging now describes the cardinal warning signs and symptoms of TSS, how to prevent TSS, and what to do if the illness presents.[144] Public awareness and prevention of menstrual TSS are also contributory factors in the drastic decrease in TSS cases.[145] After the delay in rules requiring TSS labeling, people have asked if harm could have been avoided.[146] We should not ask the same question.

ii.                  Potential Challenges for Future Litigation

Another reason to include warning labels and shift the burden of weighing risk onto consumers is that potential litigation surrounding tampon use may be difficult on manufacturers and plaintiffs. It may be costly for manufacturers to pay plaintiffs if lead exposure through tampon use is clearly linked with harm. This may lead to the increase costs of tampons, exacerbating period poverty.[147] On the flip side, future plaintiffs may face difficulties establishing harm specifically linked with tampon use. Class action lawsuits require certification of a class.[148] In order for a class to be certified, the plaintiffs in the potential class must demonstrate that the disputed issue is common to the class and that the class’s claims or defenses are “typical” to the class.[149] A range of injuries suffered would not likely be considered “typical.” The inability to prove the cause of certain conditions, like endometriosis, and the lack of available research in this area could provide a defense against claims alleging that lead exposure through the use of tampons caused injury.[150] Additionally, because there is an array of tampon brands, it may be difficult to find a class of women that have used the same, singular brand of tampon throughout their lifetimes.

Willis-Albrigo and Wright v. The Procter & Gamble Co. highlights potential weaknesses in future plaintiffs’ claims.[151] The plaintiffs there brought their case soon after the UC Berkeley study was published.[152] They claimed that defendant Procter & Gamble’s failure to disclose that its products contained lead, violated state law, and should result in economic damages since the plaintiffs would not have purchased the tampons had they known the tampons contained lead.[153] The defendant highlighted that the plaintiffs were unable to prove that lead leeches from tampons into the body and asked the court to “give no weight” to claims that tampon use was unsafe.[154] The defendants also pointed out that the plaintiffs’ injuries must be “actual and imminent, not conjectural or hypothetical.”[155] This kind of challenging litigation may be avoided if women are able to judge risk for themselves.  

Conclusion

In order to uphold its mission of providing safe, effective, and innovative products that do not harm the public health, the FDA should require manufacturers to warn women of the presence of lead, a material known to be unsafe,[156] in a product they use over a lifetime. Despite the less-than perfect knowledge surrounding the potential risks of lead exposure through tampon use and the lack of research regarding vaginal and uterine absorbency, there is conclusive research about lead.[157] This conclusive data should be reason enough to warn women of potential exposure, rather than waiting to see what happens. The benefits of a risk-based approach allows the FDA to devote resources and attention to high-risk medical devices, quickly clear lower-risk medical devices, and ease production burdens on manufacturers.[158] These benefits are precisely why this Note focuses narrowly on the presence of lead in tampons and suggests labeling requirements. Lead warning labels would address safety concerns over the current “substantial equivalence” standard used in the regulation of tampons while keeping in mind those who are affected by period poverty.

            Concern over possible lead exposure through tampon use is not frivolous, dramatic, nor is it unnecessary. The lack of awareness of the “worst-case scenario of metal exposure” should not be a reason to continue marketing these medical devices under a system that does not address the risk of lead exposure. This lack of awareness should drive more robust labeling. The unknown is a risk in itself that women should be aware of. Beyond potential health risks, this Note hints at informed decision-making. A proactive approach to risk assessment would shift the burden of risk assessment to consumers. Women, provided with more information through labels, would be the ultimate weighers of risk. Women should be decision makers in preventing possible exposure of their bodies to lead, especially considering that there are unavoidable avenues of lead exposure.[159] The FDA has identified some risks to weigh,[160] but beyond that, determining who is weighing the risks is just as important. And in order to weigh the risks of lead exposure, women must first be informed of the potential exposure through tampon use and that lead is associated with negative health effects.

* J.D. Expected 2026, University of Kentucky J. David Rosenberg College of Law; BA Economics, minor in English 2022, The University of Alabama. I would like to thank Professor Shavonnie Carthens for her guidance while writing this Note, as well as the Senior Staff Editors who helped edit this piece. Finally, I would like thank Ben, my supportive fiancé.

[1] Potentially Toxic Chemicals in Personal Care Products, N.Y. Health Found. (June 4, 2018), https://nyhealthfoundation.org/resource/fact-sheet-potentially-toxic-chemicals-in-personal-care-products [https://perma.cc/BM7N-2CBK].

[2] Gary Drenik, Beyond the Label— Consumers Want the Truth About Product Ingredients, Forbes (July 18, 2024,  10:00 AM), https://www.forbes.com/sites/garydrenik/2024/07/18/beyond-the-label--consumers-want-the-truth-about-product-ingredients/ [https://perma.cc/8CNW-CV3V ] (discussing the “better-for-you trend” present on social media platforms); see, e.g., Adrienne Crezo, Red 3: FDA Finally Bans Cancer-Causing Food Dye, Ctr. for Sci. in the Pub. Int. (Jan. 15, 2025), https://www.cspinet.org/cspi-news/red-3-fda-finally-bans-cancer-causing-food-dye [https://perma.cc/4NH5-EMHM].

[3] What Does FDA Regulate?, U.S. Food and Drug Admin. (Mar. 29, 2024), https://www.fda.gov/about-fda/what-we-do/what-does-fda-regulate [https://perma.cc/C65Y-S6CM].

[4] See generally Jenni A. Shearston, Kristen Upson, Milo Gordon, Vivian Do, Olica Balac, Khue Nguyen, Beizhan Yan, Marianthi-Anna Kioumourtzoglou & Kathrin Schilling, Tampons as a Source of Exposure to Metal(loid)s, Env’t Int’l, Aug. 2024, at 1 (discussing the discovery of heavy metal within tampons).

[5] Id. at 2.

[6] This note focuses specifically on the presence of lead within tampons. For reactions to the UC Berkeley study and discussions on proposed legislation that focus on complete disclosure of all tampon ingredients and additives, see Pamela Mejia & Jeannie Mancheno, Congress, Intensifies Tampon Safety Efforts and FDA Takes Steps to Respond, Mintz (Sept. 25, 2024), https://www.mintz.com/insights-center/viewpoints/2146/2024-09-25-congress-intensifies-tampon-safety-efforts-and-fda-takes [https://perma.cc/UJE6-XTCL]; Judith Beck & Charlotte Oram, Tampons: Looking Beyond Toxic Shock, Sci. for the People, Sept.–Oct. 1981, at 12; Rebekah Ninan, Legal Responses to the Potential Dangers of Menstrual Products, The Petrie-Flom Ctr. (Nov. 4, 2024), https://petrieflom.law.harvard.edu/2024/11/04/legal-responses-to-the-potential-dangers-of-menstrual-products [https://perma.cc/98HS-C648]; Erica Zurek, Federal Rules Don’t Require Period Product Ingredients on Packaging Labels. States are Stepping In, CBS News (Apr. 27, 2023, 5:00 AM), https://www.cbsnews.com/news/menstrual-pads-tampons-fda-ingredients-labels [https://perma.cc/2LQ9-L4Z4].

[7] Shearson et al., supra note 4, at 5.

[8] Id. at 2.

[9] Menstrual Cycle, Cleaveland Clinic (Dec. 9, 2022), https://my.clevelandclinic.org/health/articles/10132-menstrual-cycle [https://perma.cc/H8ZJ-PD8B].

[10] Id.

[11] See Megan Fallon, Reckless Regulation: The Frightening Truth Behind Feminine Hygiene Products, 16 Elon L.R. 315, 317–20 (2024); Jessica E. McLaughlin, Menstrual Cycle, Merck Manual (July 2025), https://www.merckmanuals.com/home/women-s-health-issues/biology-of-the-female-reproductive-system/menstrual-cycle [https://perma.cc/46E7-3ME5].

[12] The Menstrual Cycle, Better Health Channel, https://www.betterhealth.vic.gov.au/health/conditionsandtreatments/menstrual-cycle# [https://perma.cc/JQD5-UAD5].

[13] Menstrual Cycle: What’s Normal, What’s Not, Mayo Clinic (Apr. 22, 2023), https://www.mayoclinic.org/healthy-lifestyle/womens-health/in-depth/menstrual-cycle/art-20047186 [https://perma.cc/8AEM-Z8JD].

[14] 21 C.F.R. § 884.5470(a) (2025).

[15] Fallon, supra note 11, at 319; Rainey Horwitz, Menstrual Tampon, Ariz. State Univ. (May 25, 2020), https://embryo.asu.edu/pages/menstrual-tampon [https://perma.cc/UQ9Z-JABP]; Alice S. Weissfeld, The History of Tampons: from Ancient Times to an FDA-Regulated Medical Device, 32 Clin. Microbiology Newsl. 73, 73 (2010).

[16] Elianna Spitzer, What’s in Your Tampon? Increasing Transparency in Menstrual Products, 48 Seattle Univ. L. Rev. 229, 234 (2024).

[17] Id. at 236; see infra, Part III.B.i.

[18] Fallon, supra note 11, at 320; Tracee Cornforth, What Light, Regular, Super and Other Tampon Absorbencies Mean: Ratings Helps You Select the Safest Tampon Option, verywellhealth (June 29, 2023), https://www.verywellhealth.com/what-do-tampon-absorbency-ratings-mean-2721890 [https://perma.cc/94PR-P5YW].

[19] Menstruation Facts and Figures, Absorbent Hygiene Prod. Mfr. Ass’n., https://www.ahpma.co.uk/menstruation_facts_and_figures [https://perma.cc/2P38-5F9F]; Jasmine Wang, The Mystery of Tampon Regulation, The Regul. Rev. (Sept. 2, 2021), https://www.theregreview.org/2021/09/02/wang-mystery-tampon-regulation [https://perma.cc/KTU6-99EW].

[20] U.S. Food and Drug Admin., supra note 3; 21 U.S.C. §371(a).

[21] What We Do, U.S. Food and Drug Admin. (Nov. 21, 2023), https://www.fda.gov/about-fda/what-we-do#mission [https://perma.cc/G5LJ-5LBH].

[22] Id.

[23] FDA Rules and Regulations, U.S. Food and Drug Admin. (Apr. 9, 2024), https://www.fda.gov/regulatory-information/fda-rules-and-regulations [https://perma.cc/CZ38-FKPY].

[24] Guidances, U.S. Food and Drug Admin. (Jan. 17, 2025), https://www.fda.gov/regulatory-information/search-fda-guidance-documents/guidances#:~:text=In%20general%2C%20FDA's%20guidance%20documents,or%20statutory%20requirements%20are%20cited [https://perma.cc/R64V-LZCS].

[25] Background: FDA Good Guidance Practices, U.S. Food and Drug Admin. (Dec. 17, 2024), https://www.fda.gov/regulatory-information/guidances/background-fda-good-guidance-practices [https://perma.cc/J94A-NVRS]. 

[26] Overview of Device Regulation, U.S. Food and Drug Admin. (Jan. 31, 2024), https://www.fda.gov/medical-devices/device-advice-comprehensive-regulatory-assistance/overview-device-regulation [https://perma.cc/F3SY-6A7A].

[27] Judith A. Johnson, Cong. Rsch. Serv., R42130, FDA Regulation of Medical Devices 20–21 (2012); Amanda K. Sarata, Cong, Rsch. Serv., IN12441, FDA Regulation of Tampons 1 (2024).

[28] Johnson, supra note 27, at 4.

[29] Id.; Jonathan R. Dubin, Stephen D. Simon, Kirsten Norrell, Jacob Perera, Jacob Gowen & Akin Cil, Risk of Recall Among Medical Devices Undergoing US Food and Drug Administration 510(k) Clearance and Premarket Approval, 2008–2017, 4 JAMA Network, May 6, 2021, at 1, 2.

[30] Johnson, supra note 27, at 4; see Sarata supra note 27, at 1; see Regulatory Controls, U.S. Food and Drug Admin. (Mar. 27, 2018), https://www.fda.gov/medical-devices/overview-device-regulation/regulatory-controls [https://perma.cc/9X3T-GLUA]. 

[31] Johnson, supra note 27, at 9.

[32] Id. at 10.

[33] Id. at 4.

[34] Sarata, supra note 27, at 2.

[35] Johnson, supra note 27, at 4.

[36] See id. at 9.

[37] Id. at 10. 

[38] Id. at 9; Dubin et al., supra note 29, at 2.

[39] See 21 C.F.R. § 884.5470 (2025); Mejia & Mancheno, supra note 6; Sarata, supra note 27, at 1; The Facts on Tampons—and How to Use Them Safely, U.S. Food and Drug Admin. (Jan. 31, 2025), https://www.fda.gov/consumers/consumer-updates/facts-tampons-and-how-use-them-safely [https://perma.cc/5N37-TAEB].

[40] Regulatory Controls, U.S. Food and Drug Admin. (Mar. 27, 2018), https://www.fda.gov/medical-devices/overview-device-regulation/regulatory-controls [https://perma.cc/4JX5-M77A]. Class II medical devices pose a higher risk of harm compared with Class I medical devices, and a lower risk of harm compared with Class III medical devices. Class II medical devices are subject to general and special controls.

[41] 21 C.F.R. § 801.430 (2025); see infra Section III.B.i. 

[42] Sarata, supra note 27, at 1; see 21 C.F.R. § 801.430 (2025); U.S. Food and Drug Admin., Menstrual Tampons and Pads: Information for Premarket Notification Submissions (510(k)s) (2005).

[43] Sarata, supra note 27, at 2.

[44] Id. at 1–2. 

[45] Id. at 2.

[46] Id. 

[47] Id.

[48] Johnson, supra note 27, at 20.

[49] 21 C.F.R. § 807.87(a)–(f) (2025).

[50] See U.S. Food and Drug Admin., supra note 42.

[51] See id. at 11.

[52] Id.

[53] U.S. Food and Drug Admin., Use of International Standard ISO 10993-1, “Biological Evaluation of Medical Devices - Part 1: Evaluation and Testing Within a Risk Management Process” 1 (2023).

[54] Id. at 6.

[55] Id.

[56] Id.; see Sarata, supra note 27, at 2.

[57] Johnathan J. Darrow, Jerry Avorn & Aaron S. Kesselheim, FDA Regulation and Approval of Medical Devices: 1976–2020, 326 JAMA Network 420, at 427 (2021).

[58] Id. at 428.

[59] Id.

[60] Id.

[61] Id.

[62] Id.

[63] Id.; Dubin, supra note 29, at 2.

[64] Dubin, supra note 29, at 5–6.

[65] Id. at 8.

[66] U.S. Food and Drug Admin., The Least Burdensome Provisions: Concept and Principles 4 (2019).

[67] Id.

[68] See, e.g., 510(k) Premarket Notification, U.S. Food and Drug Admin. (Oct. 27, 2025), https://www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfpmn/pmn.cfm?start_search=1&Center=&Panel=&ProductCode=&KNumber=&Applicant=&DeviceName=unscented%20tampon&Type=&ThirdPartyReviewed=&ClinicalTrials=&Decision=&DecisionDateFrom=&DecisionDateTo=03%2F02%2F2025&IVDProducts=&Redact510K=&CombinationProducts=&ZNumber=&PAGENUM=500 [https://perma.cc/J8EP-BCQE] (providing a database of traditional and abbreviated releasable 510(k) applications from tampon manufacturers).

[69] U.S. Food and Drug Admin., supra note 42, at 12.

[70] Id.

[71] See Medical Device Safety and the 510(k) Clearance Process, U.S. Food and Drug Admin. (Sept. 6, 2023), https://www.fda.gov/medical-devices/510k-clearances/medical-device-safety-and-510k-clearance-process [https://perma.cc/3JLZ-UWQK].

[72] Katie Krumperman, Period Poverty in the United States, Ballard Brief (Feb. 2023), https://ballardbrief.byu.edu/issue-briefs/period-poverty-in-the-united-states [https://perma.cc/VR6H-TY6J].

[73] Id. 

[74] See id.

[75] Shearston et al., supra note 4, at 2.

[76] Id.

[77] Id.

[78] Id. at 5.

[79] Id. at 1; Fallon, supra note 11, at 317.

[80] Shearston et al., supra note 4, at 1; see Wang, supra note 19.

[81] Shearston et al., supra note 4, at 7.

[82] Id.

[83] Jenni A. Shearston, Kristen Upson, Milo Gordon, Vivian Do, Olgica Balac, Khue Nguyen, Beizhan Yan, Marianthi-Anna Kioumourtzoglou & Kathrin Schilling, Communicating Risk in the Face of Data Gaps: Toxic Metals in Tampons, 194 Env’t Int’l, Dec. 1, 2024, at 1.

[84] Shearston et al., supra note 4, at 5.

[85] See id.; Lead in Food and Foodwares, U.S. Food and Drug Admin. (Jan. 6, 2025), https://www.fda.gov/food/environmental-contaminants-food/lead-food-and-foodwares [https://perma.cc/7MCS-73ZS]; Lead Poisoning, World Health Org. (Sept. 27, 2024), https://www.who.int/news-room/fact-sheets/detail/lead-poisoning-and-health [https://perma.cc/8EKZ-KX44].

[86] Shearston et al., supra note 4, at 5.

[87] Id. 

[88] Lead Poisoning, Mayo Clinic (Jan. 21, 2022), https://www.mayoclinic.org/diseases-conditions/lead-poisoning/symptoms-causes/syc-20354717 [https://perma.cc/X98Z-HGZH]; About Lead and Other Heavy Metals and Reproductive Health, Ctr. for Disease Control (Feb. 14, 2024), https://www.cdc.gov/niosh/reproductive-health/prevention/lead-metals.html#:~:text=Working%20with%20lead%20or%20other,affect%20a%20baby's%20developing%20brain [https://perma.cc/HC2J-8QER].

[89] Jie Lin, Xiaoyan Lin, Jiahui Qiu, Xiumi You & Jinbang Xu, Association Between Heavy Metal Exposure and Infertility Among American Women Aged 20–44 Years: A Cross-Sectional Analysis from 2013 to 2018 NHANES Data, 11 Frontiers  Pub. Health, Feb. 13, 2023, at 1, 5.

[90] Fallon, supra note 11, at 317. See Talking to Your Child About Periods, Nemours KidsHealth (Oct. 2018), https://kidshealth.org/en/parents/talk-about-menstruation.html [https://perma.cc/5PG2-HVB9].

[91] Talking to Your Child About Periods, supra note 90.

[92] Lead Poisoning, Ctr. For Disease Control (Apr. 10, 2024), https://www.cdc.gov/lead-prevention/symptoms-complications/index.html [https://perma.cc/8MSX-5XF4]; What are Some of the Health Effects of Lead?, U.S. Env’t Prot. Agency (Jan. 13, 2025), https://www.epa.gov/lead/what-are-some-health-effects-lead [https://perma.cc/GRB9-W3CS].

[93] Mejia & Mancheno, supra note 6.

[94] Biocompatibility and Toxicology Program: Research on Medical Devices, Biocompatibility, and Toxicology, U.S. Food and Drug Admin. (Dec. 23, 2024), https://www.fda.gov/medical-devices/medical-device-regulatory-science-research-programs-conducted-osel/biocompatibility-and-toxicology-program-research-medical-devices-biocompatibility-and-toxicology.

[95] Id.

[96] Id.

[97] Id.

[98] See Mattais Öberg, Assessing the Risk of Toxic Metals in Tampons: Legitimate Concern or Misleading Alarm?, 192 Env’t Int’l, Oct. 9, 2024, at 1; Mehruba Anwar Parris, Maryann Mazer-Amirshahi, Diane P. Calello & Andrew I. Stolback, ACMT Position Statement: No Evidence that Tampons Cause Metal Poisoning, 21 J. Med. Toxicology 106, 107 (Dec. 27, 2024).

[99] Parris et al., supra note 98, at 107.

[100] Id. at 106.

[101] Id. at 106–07.

[102] Id. at 107.

[103] Öberg, supra note 98, at 1; see also Shearston et at., supra note 83, at 1. 

[104] Shearston et al., supra note 83. 

[105] Id.   

[106] Id.

[107] See id.

[108] See Shearston et at., supra note 4, at 2.

[109] U.S. Food and Drug Admin., supra note 42, at 9.

[110] Id.

[111] Id.

[112] Id. at 10–12.

[113] Mejia & Mancheno, supra note 6, at 2; see id.

[114] U.S. Food and Drug Admin., supra note 42, at 12.

[115] Id. at 11.

[116] See Shearston et al., supra note 4, at 6; Lead in Soil, U.S. Env’t. Prot. Agency (Aug. 2020), https://www.epa.gov/sites/default/files/2020-10/documents/lead-in-soil-aug2020.pdf [https://perma.cc/A3Z3-RXTX].

[117] U.S. Food and Drug Admin., supra note 42, at 1; see also Erica Seiguer & John J. Smith, Perception and Process at the Food and Drug Administration: Obligations and Trade-Offs in Rules and Guidances, 60 Food and Drug L. J. 17, 20 (2005).

[118] What We Do, supra note 21.

[119] See Öberg, supra note 98; Shearston et al., supra note 83; Parris et al., supra note 98.

[120] See Shearston et al., supra note 83. 

[121] World Economic Forum, 5 Conditions That Highlight the Women’s Health Gap, Gavi (May 6, 2024), https://www.gavi.org/vaccineswork/5-conditions-highlight-womens-health-gap [https://perma.cc/Z9YT-YV9G];  Women’s Health: Why is the Health of at Least Half the Global Population So Often Overlooked?, World Economic Forum (Jan. 2, 2023), https://www.weforum.org/stories/2023/01/women-health-gap-davos-2023 [https://perma.cc/5BSE-EEDK]; Matthew D. Baird, Melanie A. Zaber, Annie Chen, Andrew W. Dick, Chloe E. Bird, Molly Waymouth, Grace Gahlon, Denise D. Quigley, Hamad Al-Ibrahim & Lori Frank, Rsch. Funding for Women’s Health: Modeling Societal Impact 5 (Oct. 11, 2021).

[122] Endometriosis, Cleveland Clinic (Oct. 26, 2025), https://my.clevelandclinic.org/health/diseases/10857-endometriosis#symptoms-and-causes [https://perma.cc/MZ5Y-Q5X4]; Common Reproductive Health Concerns for Women, Ctr. for Disease Control (May 15, 2024), https://www.cdc.gov/reproductive-health/women-health/common-concerns.html [https://perma.cc/2YGP-3VAM]; Ovarian Cancer, NHS Inform (Feb. 21, 2025), https://www.nhsinform.scot/illnesses-and-conditions/cancer/cancer-types-in-adults/ovarian-cancer/#:~:text=What%20causes%20ovarian%20cancer%3F,breast%20cancer%20in%20the%20past [https://perma.cc/YZ84-9B3V].

[123] See Jamie M. Kohen, The History of the Regulation of Menstrual Tampons 16–20 (Apr. 6, 2001) (unpublished third year student paper), https://dash.harvard.edu/server/api/core/bitstreams/7312037c-acc7-6bd4-e053-0100007fdf3b/content [https://perma.cc/MW5R-APLM].

[124] Patrick M. Schlievert & Catherine C. Davis, Device-Associated Menstrual Toxic Shock Syndrome, 33 Clin. Microbiology Rev., May 27, 2020, at 1, 2–3.

[125]  Historical Perspectives Reduced Incidence of Menstrual Toxic-Shock Syndrome—United States, 1980-1990, Ctr. For Disease Control (June 29, 1990), https://www.cdc.gov/mmwr/preview/mmwrhtml/00001651.htm [https://perma.cc/E86E-H7NN].

[126] Schlievert & Davis, supra note 124, at 1; Spitzer, supra note 16, at 236.

[127] Kohen, supra note 123, at 6; Historical Perspectives Reduced Incidence of Menstrual Toxic-Shock Syndrome—United States, 1980-1990, supra note 125.

[128] Historical Perspectives Reduced Incidence of Menstrual Toxic-Shock Syndrome—United States, 1980-1990, supra note 125.

[129] Kohen, supra note 123, at 10 (quoting Ethyl Corp. v. EPA, 541 F.2d 1, 25 (D.C. Cir. 1976)).

[130] Id. at 10­–12.

[131] Id. at 12.

[132] Id. at 15–16.

[133] Id. at 16–17.

[134] Id. at 17–18.

[135] Id.

[136] Id. at 20.

[137] Id.

[138] Id.

[139] Id. at 23.

[140] Id. at 22-23.

[141] Id. at 34; see Historical Perspectives Reduced Incidence of Menstrual Toxic-Shock Syndrome—United States, 1980-1990, supra note 125.

[142] Fallon, supra note 10, at 324; see also Kohen, supra note 123, at 34.

[143] Kohen, supra note 123, at 34.

[144] See id.

[145] Id.

[146] Beck & Oram, supra note 6, at 12.

[147] See Krumperman, supra note 72.

[148] Fed. R. Civ. P. 23.

[149] Id.

[150] See, e.g., Defendant’s Notice of Motion and Motion to Dismiss at 4, Willis-Albrigo and Wright v. The Procter & Gamble Co. (S.D. Cal. 2024) (No. 3:24-cv-01416-GPC-SBC) (dismissed).

[151] See id.  

[152] Id. 

[153] Id. at 4–5.

[154] Id. at 15–16.

[155] Id. at 24 (citing Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 967 (9th Cir. 2018)).

[156] Lead Poisoning, supra note 85.

[157] See id.; Shearston et al., supra note 4.

[158] Don Sherratt, Taking a Risk-Based Approach to Medical Device Design, Med. Device Diagnostic & Indus. (Sept. 1, 1999), https://www.mddionline.com/design-engineering/taking-a-risk-based-approach-to-medical-device-design# [https://perma.cc/C4K5-L8VN]; Darrow et al., supra note 57, at 427.

[159] See Lead Poisoning, supra note 85. While tampons are a surprising avenue of heavy metal exposure, most people are exposed to low levels of certain metals through food, air, and water. For example, arsenic is in avocados, mercury is present in fish, and certain types of chromium may actually be used as a supplement. Avocado Pits: Start or Stop Eating?, Health Scis. Acad. https://thehealthsciencesacademy.org/health-tips/avocado-pits-start-stop-eating [https://perma.cc/AZ43-3N8L]; FDA/EPA 2004 Advice of What You Need to Know About Mercury in Fish and Shellfish, U.S. Food and Drug Admin. (Mar. 2004), https://www.fda.gov/food/environmental-contaminants-food/fdaepa-2004-advice-what-you-need-know-about-mercury-fish-and-shellfish [https://perma.cc/P65D-T2C5]; Chromium, Nat’l Inst. Health (June 2, 2022), https://ods.od.nih.gov/factsheets/Chromium-HealthProfessional [https://perma.cc/N4X5-XEP2].

[160] See U.S. Food and Drug Admin., supra note 42, at 9.

Icing on the Yellow Cake: The Future of Small Modular Reactors in Kentucky

Icing on the Yellow Cake: The Future of Small Modular Reactors in Kentucky

Download a PDF Version

Ben Schaeffer*

Introduction

On March 28, 1979, the most significant accident in the history of the operation of commercial nuclear power plants in the United States occurred.[1] Through an unfortunate combination of equipment malfunction, human error, and defects in the design of the reactor, the Three Mile Island Unit Reactor 2 near Middletown, Pennsylvania partially melted down.[2] Fortunately, the accident caused no injuries or long term health consequences.[3]  However, the more latent and longstanding impact of the meltdown, perhaps, was its effect on the public perception of nuclear energy. In fact, the number of active reactors continues to steadily fall from its peak at 111 in 1990.[4] In addition to public perception influenced by the above-mentioned accident, commentators also cite construction costs, storage issues, and regulatory hurdles as potential barriers for constructing nuclear power plants.[5]

There is, however, a point at which public skepticism of nuclear power clashes with the collective acknowledgment of the necessity for a source of energy that is both environmentally friendly and cost efficient. In a 2008 study conducted by the Pacific Northwest National Laboratory’s Joint Global Change Research Institute, scientists projected the “required growth” of nuclear power in order to alleviate the potentially detrimental environmental impact of concentrated carbon in the atmosphere.[6] Still, despite the numerous advantages that nuclear energy provides, including its reliability, competitive electricity generating costs, and low environmental impact, the future of conventional nuclear power plants in the United States remains dubious.[7]

Against this contentious backdrop, the case for small modular reactors (SMRs) becomes compelling. Unlike conventional nuclear power plants which produce one to three gigawatts (GW) of electricity, SMRs might produce as little as fifty megawatts (MW) of electricity.[8] Today, the International Atomic Energy Agency defines “small” as an energy output below 300 MW of electricity.[9] Given its smaller composition, the development and construction of SMRs could address some of the regulatory and logistical hurdles posed by larger reactors—each individual reactor is a “unit” which enables the unit to be readily transportable and the “modular” nature of the reactors refers to its ability to be assembled in a uniform manner and implemented on-site in isolated locations.[10]

Coal country is primed for the development of SMRs.[11] Despite a post–WWII boom in coal mining, production continues to steadily decline, especially in the eastern United States.[12] For example, in Kentucky, coal production reached its zenith in 1990 when 173.3 million tons of coal were mined; in the ensuing two decades, the output declined by 75%.[13] A 2022 Department of Energy report emphasized how policy goals such as the “Good Neighbor Initiative” and deregulation in the electricity market will continue to lead to the closure of coal powered plants, in turn augmenting the strain on states whose economies have historically relied on cheap energy through coal production.[14]

Therefore, for states that formerly relied on coal production, SMRs could fill a void left by the waning reliance on its output. Virginia is one such state that recently passed legislation to promote the development of SMRs.[15] For Kentucky, the collapse of the coal industry continues to lead to the “shedding” of thousands of jobs.[16] According to a report conducted by the Kentucky Energy and Environment Cabinet, coal has historically provided the Commonwealth with “low-cost electricity and energy security.”[17] In light of the decrease in coal production, Kentucky’s “electricity-intensive manufacturing” continues to be threatened.[18] In turn, Kentucky’s promulgation of a regulatory and statutory scheme for small modular nuclear reactors similar to Virginia’s will catalyze Kentucky’s already burgeoning economy because of the environmental benefits and the potential role small modular reactors could play in maximizing the efficiency and scale of manufacturing in the state.

I. Overview of Kentucky’s Manufacturing and Energy Output

Kentucky has what the U.S. Energy Information Administration, a principal agency of the U.S. Federal Statistical System, refers to as an “energy intensive economy.”[19] The Commonwealth’s industrial sector accounts for approximately thirty-five percent of its total energy consumption.[20] Given its energy-intensive status, Kentucky enjoyed the thirteenth lowest average electricity price of any state in 2023.[21] In fact, according to the Kentucky Cabinet for Economic Development in the past five years alone, manufacturers announced plans for approximately 800 facility locations and expansion projects with reported capital investments in excess of $28 billion with close to 40,000 jobs to be added to Kentucky’s economy.[22]

Despite an overall decrease in coal output, coal production still dominates the Commonwealth’s energy portfolio.[23] Kentucky currently ranks fifth in the country in terms of recoverable coal and sixth in present coal production.[24] That said, as coal-fired units continue to become more expensive to operate and maintain, 5,600 MW of energy generated by coal has shut down since 2013.[25] In turn, natural gas continues to fill that void with twenty-three percent of the Commonwealth’s electricity output being generated by natural gas powered plants in 2023.[26] The rest of Kentucky’s electricity output came from a mix of renewable and clean energy sources including hydroelectric power plants, biomass, solar energy, and petroleum-fired generation.[27]

Overall, low energy costs in Kentucky continue to be a “catalyst” for economic growth, especially for industries whose operations rely substantially on cheap energy.[28] Thus, manufacturing, which remains Kentucky’s dominant economic sector, was the “most responsive” to changes in electricity prices.[29] In turn, ensuring stable and sustainable energy consumption is crucial as Kentucky’s economy continues to grow. In 2023, the Commonwealth, at a rate of 8.39 percent, ranked eleventh nationally in energy expenditures as a percentage of current-dollar GDP.[30] Energy is an “input for almost all economic activity;” therefore, this statistic suggests that the high rate of energy consumption is a “necessary enabler” of economic growth.[31] For a state which ranked forty-fifth in overall GDP per capita in 2023, Kentucky’s high consumption of energy relative to its overall GDP manifests the continued proliferation of its manufacturing sector.[32]

In fact, manufacturing has played a central role in Kentucky’s recent economic momentum. In 2021, manufacturers accounted for 17.39 percent of the total economic output in the state and employed close to fifteen percent of the workforce.[33] Furthermore, total output from manufacturing eclipsed $38 billion in 2021.[34] According to the Lane Report, local Kentucky economic developers expect the momentum in manufacturing to continue into 2025.[35] Furthermore, local developers expect the logistics, service, life sciences, and healthcare industries to continue to blossom in Kentucky in the coming years.[36] Evidently, Kentucky is approaching an economic renaissance of sorts.

In turn, given widespread environmental concerns with coal, a clean, generative source of energy will be vital to ensure the sustainable development of Kentucky’s economy. In 2021, coal in Kentucky accounted for 52.5 million metric tons of carbon dioxide emissions.[37] Furthermore, most carbon emissions in the Commonwealth came from power plants, specifically those affiliated with the utility sector.[38] Given the disproportionate percentage of emissions generated from coal powered plants, the Commonwealth saw a spike in construction requests for solar developers.[39] Overall, state officials continue to display a propensity to turn to other sources of energy in light of current technological developments; for instance, Kentucky’s annual solar capacity increased from approximately 100 MW in 2023 to approximately 400 MW in 2024.[40] Over the next five years, Kentucky’s solar capacity is estimated to increase by approximately 4,774 MW—this estimation places Kentucky fourteenth in the country in terms of projected increase in solar capacity.[41] Moreover, Kentucky utilities including LG&E and Kentucky Utilities plan to open four natural gas plants by 2028, citing increased energy demand from new data centers and other commercial developments.[42]

II. The Role of Small Modular Reactors in Nuclear Proliferation

SMRs will play a central role in fulfilling the United States’ projected nuclear proliferation over the next several decades. A 2013 U.S. Energy Information Administration Report projected that the U.S. will increase its consumption of nuclear energy by about 68 billion kilowatt-hours by 2035.[43] According to nuclear researcher Jorge Pedraza, assuming that a 100 MW SMR operates at eighty-five percent capacity, the construction of only ninety-one SMRs could fill this gap.[44] Importantly, SMRs, unlike conventional reactors, would require less capital investment due to the lower plant cost; in addition, the modularity ensures that the amount of time spent on on-site preparation and the overall time of construction is reduced.[45] Finally, SMRs may be paired with other sources of energy, such as renewables, such that the overall efficiency of the electricity-producing system is enhanced.[46]

Overall, the lower construction costs perhaps provide the most upside when weighing the relative utility of SMRs against larger nuclear power plants. Onerous construction costs are often cited as a primary deterrent in debates over the proliferation of nuclear power, even those pertaining to the construction of SMRs.[47] For example, a research project conducted by the CATO Institute asserted that burdensome carbon taxes would have to be levied in order to ensure the cost-effectiveness of SMRs over the coming years.[48] That said, proponents of SMRs emphasize that cost efficiency would be gleaned through external factors, namely through a decreased reliance on the importation of sources of energy and through SMRs’ capacity to ensure the security of grids across the United States through dual output.[49] Furthermore, concerns about construction costs for SMRs may be displaced—SMRs would be “ready to ‘plug and play’ upon arrival,” meaning that their size and modularity would increase site flexibility and ensure lower construction costs.[50] Moreover, the modular nature provides a degree of uniformity in the assemblage of the plants such that an increased quantity in the number of plants constructed would inevitably lead to efficiency in the long term as builders may work out kinks, thus optimizing the manner and means of construction.

Myriad safety concerns, another factor that features readily in debates over nuclear power, may be assuaged by the unique features of SMRs. For starters, SMRs have a lower “source term,” or total quantity of nuclides produced in the reactor, in comparison to larger nuclear power plants.[51] In other words, Pedraza asserts that “SMRs are expected to have higher safety margins and potential lower large release frequency … which increases the ability to site SMRs closer to populated areas.”[52] Furthermore, SMRs have a lower “linear element rating” and enhanced decay heat.[53] While the reduced linear element rating provides numerous benefits, including a reduction in the amount of spent volume fuel, the enhanced decay heat “ease[s] the burden on the operating staff” and facilitates more adequate accident management.[54]

III. Virginia’s SMR Statutes

The statutory scheme recently promulgated by Virginia offers a fascinating case study into how a state once at the pinnacle of the coal industry will explore nuclear development. According to Virginia’s Department of Energy, Governor Glenn Youngkin recently announced that Virginia would build an SMR within the next decade, “making the Commonwealth the first state to adopt this innovative technology to its grid.”[55] Dominion Energy, a prominent utility company in Virginia, accepted the proposal to construct the infrastructure.[56] A statute Governor Youngkin signed into law this past summer allows Dominion to recover the construction costs of “early development” if they receive regulatory approval.[57] Specifically, the costs “would be capped at $1.40 per month for a residential customer using 1,000 kilowatt hours of electricity in a month.”[58] Additionally, this past fall, Amazon entered into an agreement with Dominion to pay for some of the development costs of the small modular reactor.[59] The announcement, according to a Virginia publication, evidences the multination technology company’s commitment to achieve clean energy goals.[60]

The Virginia Electric Utility Regulation Act has two provisions concerning the development of SMRs. While § 56–585.1:14 provides for the recovery of costs associated with small modular reactors, § 56–585.1:15 provides for the recovery of costs associated with small modular nuclear facilities.[61] § 56–585.1:14, which governs Phase II utilities, propounds the scheme under which utility companies such as Dominion may recover “project development costs.”[62] Specifically, Phase II utilities may recover up to eighty percent of their project development costs pursuant to an accelerated cost recovery scheme which allows the utility to recover from consumers on a “timely and current basis,” while the remaining twenty percent may be recovered through the utility's rates for generation and distribution services under section (A)(1) of § 56–585.1.[63] While the remaining twenty percent of costs incurred after July of 2024 are not eligible for the accelerated cost recovery through the rate adjustment clause of § 56-585.1, they may be recovered through the general scheme of rate setting for generation and distribution services under Title 56 of Virginia’s Code.[64] Furthermore, the “annual revenue requirement” of the rate adjustment clause shall not exceed an amount that would increase the monthly bill of an average Virginia consumer by more than $1.40.[65]

§ 56–585.1:15, on the other hand provides for a recompensation scheme by a Phase I Utility–these utilities can recover “all approved reasonable and prudent project development costs” for the development of a small nuclear reactor facility.[66] Again, such costs are to be recovered through a rate adjustment clause under § 56–585.1 “amortized over a period equal to the period during which the costs were incurred or five years, whichever is greater.”[67] Unlike § 56–585.1:14, which sets a cap both on the amount the Phase II utilities can recover through the rate adjustment clause and the amount that consumers’ bills will increase, § 56–585.1:15 simply provides that the overall project development costs recovered under the rate adjustment clause will not exceed $125 million.[68] Importantly, both bills are to expire in the next decade, so while there remains much work to be done in Virginia, the legislation will remain critical for Virginia in achieving its carbon-free goals.[69]

IV. The Current Status of Kentucky’s Nuclear Program

As explained by the Gateway for Accelerated Innovation in Nuclear (GAIN), Kentucky has witnessed “the volatility of coal as an energy source” in the past two decades, specifically as a result of “shrinking demand, plant closures, job losses and tougher pollution controls.”[70] Therefore, Kenya Stump, executive director of Kentucky’s Office of Energy Policy, continues to advocate for nuclear energy as the missing link in Kentucky’s otherwise “‘all of the above portfolio.’”[71] Ultimately, the Office of Energy Policy and GAIN entered into a collaborative partnership that proved beneficial—after years of advocacy in Frankfort, the “working group” succeeded in garnering bipartisan legislative support for the creation of the Kentucky Nuclear Energy Development Authority (KNEDA).[72] Late in spring of 2024, the Kentucky legislature overrode Governor Beshear’s veto and passed SB 198 and formally establishing KNEDA.[73]

According to K.R.S. § 164.2802, the mission of KNEDA shall be to “serve as the nonregulatory, trusted state government agency on nuclear energy issues” and to “support and facilitate the development of … nuclear energy … in a collaborative manner.”[74] Moreover, the statute provides for the composition of the advisory board which governs KNEDA.[75] Specifically, the advisory board is to consist of twenty-two voting members and eight non-voting members.[76] The statute provides exact criteria for each of the individual members—for example, of the seven state government members who are to be voting members, one must be the secretary of the Energy and Environment Cabinet and one must be the chair of the Public Service Commission.[77] Subsection seven of K.R.S. § 164.2802 outlines the purpose of KNEDA.[78] Notable provisions of this subsection include “assist[ing] interested communities in understanding advanced nuclear opportunities, including the importance of secure, firm, cost-competitive power for customers … as well as the potential for … economic benefits,”  “develop[ing] the capacity for nuclear energy economic development in the Commonwealth … and seeking out new grants and other financial support for nuclear energy development,” and  “build[ing] the organizational capacity to engage … stakeholders interested in nuclear energy technologies that would consist of utilities, environmental advocates, electric cooperatives, and major industrial companies.”[79] Finally, K.R.S. § 164.2802 contemplates thorough collaboration with federal regulatory bodies to ensure adequate and satisfactory proliferation.[80]

Additionally, as a part of SB 198, the Kentucky legislature codified § 164.2804 and § 164.2803, which respectively provide for a framework for identifying communities that may be ready and willing to develop nuclear energy-related projects and financial assistance program for nuclear energy-related projects.[81] According to § 164.2804, the criteria to “attain the designation” as a “nuclear-ready community” includes: (a) holding local public educational meetings; (b) the availability of sites identified by the Cabinet for Economic Development as being suitable for nuclear projects; and (c) “the adoption of resolutions from the county and all cities in the county or a successful county ballot initiative declaring the community's readiness.”[82] §154.12-340, on the other hand, provides the basic foundation for how these large scale infrastructure projects will be financed.[83] According to the statute, KNEDA is to “create and implement” a financial assistance program for the location of nuclear energy projects within the state.[84] To finance the development of projects, KNEDA will enact regulations to further the purposes of this particular subsection.[85]

V. Why Kentucky Should Adopt a Statutory Scheme Like Virginia’s

In light of Kentucky’s recent “economic momentum,” the uncertainty wrought by the “volatility of coal as an energy source” necessitates decisive legislative action to promulgate a statutory scheme similar to the one Virginia recently enacted.[86] Although a principal barrier to nuclear proliferation is the prohibitive expenses associated with development, the cost-recovery scheme in the Virginia law will perpetuate positive externalities that offset the costs. As explained by Severin Borenstein, co-director of the University of California Energy Institute, in instances of utility revenue raising, economic efficiency is maximized “when price reflects full short-run social marginal cost.”[87] Besides the obvious costs of labor and construction, society’s marginal costs include negative externalities such as emissions and pollution.[88] Although the development of a small modular reactor will undoubtedly require intensive labor and capital, the reduction in negative externalities associated with Kentucky’s current energy infrastructure will reap future health and economic benefits.

Virginia’s statutory scheme for the development of SMRs has two different rate-adjustment provisions: while Phase II utilities can recover up to eighty percent of their development costs through accelerated cost recovery with an increase on consumers’ electric bill capped at $1.40/month, Phase I utilities can recover up to $125 million in development costs.[89] K.R.S. § 164.2803, on the other hand, merely authorizes KNEDA to “verify and process” eligible financial assistance requests pursuant to Kentucky’s economic development fund outlined in K.R.S. § 154.12-100.[90] The relevant language of § 164.2803 provides that KNEDA will process such requests in a manner that will “precipitate further investment in the nuclear energy ecosystem,” consider “the economic impact of the grant funding on the community and region where the proposed project will be located,” as well as “the readiness of the community where the proposed project will be located,” and the “amount of additional investment that would be made in the proposed project,” which suggests KNEDA will take the place of the secretary of the Cabinet for Economic Development under § 154.12-100.[91] Assuming the financial assistance program operated by KNEDA mirrors the secretary’s management of the economic development fund program, § 154.12-100 imposes a number of hurdles, including a report outlining “projected job creation and retention, an investment breakdown, and overall project description,” and the projects themselves are funded through the issuance of bonds with the amount of funds issued capped ultimately by the balance of the fund.[92] Contrasted with the Virginia scheme which provides for cost recovery as a matter of law, it is clear that the current financial assistance program will impose burdensome transaction costs.  

When Governor Youngkin signed the Virginia legislation in law, he expressed his intention to make Virginia “the world’s leading nuclear innovation hub.”[93] By passing similar legislation, Kentucky will be able to foster the growth of its manufacturing sector. According to the U.S. Department of Energy, SMR deployment “would result in significant growth in domestic manufacturing, tax base, and high paying factory jobs.”[94] Under the leadership of Governor Beshear, Kentucky is poised to witness more than 1,100 expansion projects and $35 billion in investments.[95] In fact, in 2022, Kentucky placed sixth in Site Selection Magazine’s annual Prosperity Cup, which tracks economic growth and the S&P Global Ratings upgraded Kentucky’s financial outlook to “positive.”[96] With Kentucky’s economic momentum set to continue, a firm commitment to the development of SMRs could cement Kentucky’s status as a leading innovator in nuclear development. In other words, similar to Governor Youngkin’s stated goal of Virginia becoming a world-leading innovator in nuclear technology, Kentucky could play a similar role in nuclear energy’s resurgence with legislation that mirrors that of Virginia’s.

A firm commitment to the development of SMRs would confer a degree of reputational capital upon Kentucky’s manufacturing sector that would continue to attract private investments, contributing to the state’s growth. Although reputational capital is an intangible measure not readily quantifiable, it “can be defined as a value consisting of trust, positive image and commitment.”[97] This “web of impressions” will not only be crucial for private investors and manufacturers looking to find a home in Kentucky for developmental projects, but also encompasses stakeholders in the communities in which SMRs would ideally be placed.[98] Ultimately, Kentucky’s cultivation of reputational capital in the nuclear sector as a world-leading innovator will be crucial for long-term success, and a firm commitment to the development of SMRs will be a necessary first step.[99]

Conclusion

Overall, considering Kentucky’s recent economic momentum, adding nuclear to the Commonwealth’s energy portfolio will be vital for continued growth.[100] Specifically, the development of small modular reactors, advanced nuclear reactors that can be sited in areas otherwise ill-suited for nuclear power plants, will provide indispensable benefits logistically, environmentally, and economically.[101] Even moderate deployment levels of SMRs would reap “significant economic impact.”[102] Consequently, the waning contribution of coal to Kentucky’s energy grid is occurring simultaneously with prolific economic growth in the manufacturing sector of the Commonwealth; therefore, energy innovation is necessary to keep pace with electricity demands. Ultimately, a statutory cost recovery provision for SMRs enacted by the General Assembly would ensure development actually occurs and enable Kentucky to continue to be a global leader in energy innovation.

* J.D Expected 2026, University of Kentucky J. David Rosenberg College of Law; BA History 2022, Swarthmore College

[1] Backgrounder on the Three Mile Island Accident, U.S. Nuclear Regul. Comm’n (March 28, 2024), https://www.nrc.gov/reading-rm/doc-collections/fact-sheets/3mile-isle.html [https://perma.cc/7XF5-JGHJ].

[2] Id.

[3] See 5 Facts to Know About Three Mile Island, Office of Nuclear Energy (May 4, 2022), https://www.energy.gov/ne/articles/5-facts-know-about-three-mile-island [https://perma.cc/9WP4-NJ67].

[4] Rebecca Leppert & Brian Kennedy, Majority of Americans Support More Nuclear Power in the Country, Pew Rsch. Ctr. (Aug. 5, 2024), https://www.pewresearch.org/short-reads/2024/08/05/majority-of-americans-support-more-nuclear-power-in-the-country/ [https://perma.cc/BAK4-V5TG].

[5] Id.

[6] Jorge Morales Pedraza, Small Modular Reactors for Electricity Generation: An Economic and Technologically Sound Alternative 13 (2017).

[7] Id. at 241–43.

[8] Craig Bettenhausen, Can Small Modular Reactors Save Nuclear Energy?, 101 Chem. & Eng’g News, no. 30, Sep. 11, 2023, at 30, 31. 

[9] Small Nuclear Power Reactors, World Nuclear Power Ass’n (June 17, 2025), https://world-nuclear.org/information-library/nuclear-fuel-cycle/nuclear-power-reactors/small-nuclear-power-reactors [https://perma.cc/ZP2F-U43P].

10 Bahman Zohuri, Small Modular Reactors as Renewable Energy Sources 195 (2018).

[11] Evan Halper, Smaller, Safer, Cheaper? Modular Nuclear Plants Could Reshape Coal Country, Wash Post (Feb. 19, 2023), https://www.washingtonpost.com/climate-solutions/2023/02/19/coal-nuclear-smr-modular/.

[12] Charles D. Kolstad, What is Killing the U.S. Coal Industry?, Stan. Inst. for econ. Pol’y Rsch. (Mar. 2017), https://siepr.stanford.edu/publications/policy-brief/what-killing-us-coal-industry [https://perma.cc/ZG6U-XU3X].

[13] Kentucky Coal Facts 15 (Ky. Energy and Env’t Cabinet, Dep’t for Energy and Indep., 17th ed. 2017).

[14] J. Hansen, W. Jenson, A. Wrobel, N. Stauff, K. Biegel, T. Kim, R. Belles & F. Omitaomu, U.S. Dept. of Energy, Investigating Benefits and Challenges of Converting Retiring Coal Plants into Nuclear Plants: Nuclear Fuel Cycle and Supply Chain 1 (2022).

[15] Legislation on Small Modular Reactor Development Advances Virginia’s Shift to Clean Energy, Mcguire Woods (Apr. 25, 2024), https://www.mcguirewoods.com/client-resources/alerts/2024/4/legislation-on-small-modular-reactor-development-advances-virginias-shift-to-clean-energy/.

[16] James Bruggers, The Decline of Kentucky’s Coal Industry Has Produced Hundreds of Safety and Environmental Violations at Strip Mines, Inside Climate News (Apr. 18, 2022), https://insideclimatenews.org/news/18042022/kentucky-coal-mining-violations/ [https://perma.cc/9TDX-E7TY].

[17] Aron Patrick, Ky. Energy and Env’t Cabinet, The Vulnerability of Kentucky’s Manufacturing Economy to Increasing Electricity Prices 2 (Oct. 2012).

[18] See id. at 6.

[19] Kentucky: State Profile and Energy Estimates, U.S. Energy Info. Admin. (Oct. 17, 2024), https://www.eia.gov/state/analysis.php?sid=KY [https://perma.cc/9ATZ-YRXL].

[20] Id.

[21] Id.

[22] Existing Industries: Manufacturing, Ky. Cabinet for Econ. Dev., https://ced.ky.gov/existing_industries/manufacturing [https://perma.cc/7W5W-36MP].

[23] U.S. Energy Info. Admin., supra note 19.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Patrick, supra note 17, at 7.

[29] Id. at 9.

[30] Table E15. Total Energy Price and Expenditure Estimates (Total, Per Capita, and Per GDP), Ranked by State, 2023, U.S. Energy Info. and Admin, https://www.eia.gov/state/seds/data.php?incfile=/state/seds/sep_sum/html/rank_pr.html&sid=US [https://perma.cc/9Y9N-3R69].

[31] Todd Moss & Jacob Kinser, How Does Energy Impact Economic Growth? An Overview of the Evidence, Energy for Growth Hub (March 7, 2023), https://energyforgrowth.org/article/how-does-energy-impact-economic-growth-an-overview-of-the-evidence [https://perma.cc/XG9P-TKSG].

[32] Pallavi Rao, Mapped: GDP per Capita, by U.S. State, Visual Capitalist (Oct. 23, 2024), https://www.visualcapitalist.com/mapped-u-s-states-by-gdp-per-capita.

[33] Ky. Ctr. for Stats. (KYSTATS), Kentucky Economic Analysis PY 2022 6–7 (Sept. 2022), https://kystats.ky.gov/Content/Reports/Kentucky%20PY%202021%20Annual%20Economic%20Analysis.pdf [https://perma.cc/UL2D-UQ64].

[34] Gross Domestic Product: Manufacturing (31-33) in Kentucky, Fed. Rsrv. Bank of St. Louis (Sep. 26, 2025), https://fred.stlouisfed.org/series/KYMANNGSP# [https://perma.cc/C5RZ-DX99].

[35] Mark Green, Economic Development: Kentucky’s Economic Momentum Continues in 2025, The Lane Rep. (Dec. 1, 2024), https://www.lanereport.com/177911/2024/12/economic-development-kentuckys-economic-momentum-continues-in-2025 [https://perma.cc/MGG9-43HD].

[36] Id.

[37] Total Carbon Dioxide Emissions from All Sectors, Coal for Kentucky, Fed. Rsrv. Econ. Data (Sep. 19, 2023), https://fred.stlouisfed.org/series/EMISSCO2TOTVTTCOKYA [https://perma.cc/FNH4-XZ47].

[38] Liam Niemeyer, How Kentucky Generates Electricity - And Emits Tons of Greenhouse Gasses, Ky. Lantern (June 14, 2023, 5:00 AM), https://kentuckylantern.com/2023/06/14/how-kentucky-generates-electricity-and-emits-tons-of-greenhouse-gasses/#:~:text=By%3A%20Liam%20Niemeyer%20%2D%20June%2014%2C%202023%205%3A00%20am&text=A%20recent%20state%20analysis%20found,of%20electricity%20in%20the%20state.

[39] Id.

[40] Kentucky State Solar Overview, Solar Energy Indus. Ass’n (2025), https://seia.org/state-solar-policy/kentucky-solar [https://perma.cc/D2RN-EQB6].

[41] Id.

[42] Kentucky Utility Plans More Natural Gas and Solar Power, Moving Away from Coal, EHN (Oct. 28, 2024), https://www.ehn.org/kentucky-utility-plans-more-natural-gas-and-solar-power-moving-away-from-coal-2669488262.html#:~:text=In%20short%3A,60%25%20by%20the%20early%202030s [https://perma.cc/GVE3-F8YZ].

[43] Pedraza, supra note 6, at 137.

[44] Id.

[45] Office of Nuclear Energy, Benefits of Small Modular Reactors (SMRs), U.S. Dep’t of Energy, https://www.energy.gov/ne/benefits-small-modular-reactors-smrs [https://perma.cc/G3BS-LUYU].

[46] Id.

[47] See David Kemp & Peter Van Doren, Cost Escalation and Delays for Small Modular Reactors Suggest Caution About Nuclear Power Renaissance, Cato Inst. (Mar. 1, 2023, 12:31 PM), https://www.cato.org/blog/cost-escalation-delays-small-modular-reactors-suggest-caution-about-nuclear-power-0.

[48] Id.

[49] Zohuri, supra note 10, at 195.

[50] Pedraza, supra note 6, at viii.

[51] Id. at 244.

[52] Id.

[53] Id. at 244–45.

[54] Id.

[55] Nuclear Energy: Virginia’s Energy Safety Net, Va. Dep’t of Energy, https://www.energy.virginia.gov/renewable-energy/Nuclear.shtml#:~:text=As%20part%20of%20the%202022,innovative%20technology%20to%20its%20grid [https://perma.cc/QPG3-YLMM].

[56] Patrick Larsen, Dominion Plans to Operate Small Modular Nuclear Reactor, VPM (July 10, 2024, 5:27 PM), https://www.vpm.org/news/2024-07-10/dominion-plans-to-operate-first-small-modular-nuclear-reactor-in-u-s.

[57] Id.

[58] Id.

[59] Charlie Paullin, Amazon Announces Deal with Dominion Energy to Develop a Small Nuclear Reactor, Va. Mercury (Oct. 17, 2024, 1:34 PM), https://virginiamercury.com/2024/10/17/amazon-announces-deal-with-dominion-energy-to-develop-a-small-nuclear-reactor/.

[60] Id.

[61] Va. Code Ann. §§ 56-585.1:14–15 (2024).

[62] Va. Code Ann. § 56-585.1:14 (2024).

[63] Id. at (B).

[64] Id.

[65] Id. at (C).

[66] Va. Code Ann. § 56-585.1:15 (C).

[67] Id.

[68] Id.

[69] Legislation on Small Modular Reactor Development Advances Virginia’s Shift to Clean Energy, supra note 15.

[70] Donna Kemp Spangler, GAIN Helped Kentucky Clear the Runway for Nuclear Energy. Now the Coal-dependent State is Waiting for the Plane to Land, Gateway for Accelerated Innovation in Nuclear, https://gain.inl.gov/gain-helped-kentucky-clear-the-runway-for-nuclear-energy/ [https://perma.cc/2XWS-MW9V].

[71] Id.

[72] Id.

[73] Gregory Dutton & Pierce Tomoki Stevenson, State Legislature Sparks Nuclear Energy Development in Kentucky with SB 198, Frost Brown Todd (May 16, 2024), https://frostbrowntodd.com/state-legislature-sparks-nuclear-energy-development-in-kentucky-with-sb-198/ [https://perma.cc/G3QN-UZNE].

[74] Ky. Rev. Stat. Ann. § 164.2802(1) (2024).

[75] Id. at (2).

[76] Id.

[77] § 164.2802(2)(a)(2), (4).

[78] § 164.2802(7).

[79] § 164.2802(7)(a), (c), (g).

[80] See § 164.2802(7)(f), (h).

[81] Ky. Rev. Stat. Ann. § 164.2804(1) (West 2024); Ky. Rev. Stat. Ann. § 164.2803 (2025).

[82] § 164.2804(1)(a)-(c).

[83] § 164.2803(2).

[84] Id.

[85] Id.

[86] See Green, supra note 35; Spangler, supra note 69.

[87] Severin Borenstein, The Economics of Fixed Cost Recovery by Utilities, Berkeley Lab Future Elec. Util. Regul., June 2016, at 47, 48.

[88] Id. at 47.

[89] Legislation on Small Modular Reactor Development Advances Virginia’s Shift to Clean Energy, supra note 15.

[90] Ky. Rev. Stat. Ann. § 164.2803(1).

[91] § 164.2803(2); see Va. Code Ann. § 154.12-100(3).

[92] § 154.12-100(2), (4), (7).

[93] David Dalton, Virginia Governor Signs Into Law Multiple Bills on SMR Development, NucNet (Mar. 31, 2023), https://www.nucnet.org/news/virginia-governor-signs-into-law-multiple-bills-on-smr-development-3-5-2023 [https://perma.cc/55AR-D6MA].

[94] Office of Nuclear Energy, supra note 45.

[95] Nicole Shakir, Kentucky’s Historic Economic Momentum Continues to Build Into 2025, Expansion Sol. Mag. (Feb. 20, 2025), https://www.expansionsolutionsmagazine.com/kentuckys-historic-economic-momentum-continues-2025/ [https://perma.cc/N6GS-33D6].

[96] Kentucky’s Booming Economy, Ky. Gov. Andy Beshear, https://governor.ky.gov/Priority/Pages/economy.aspx [https://perma.cc/9ASY-PRR6].

[97] Vilma Luoma-Aho, Reputation Among the Public: It Can be Measured, in Building, Measuring and Improving Public Confidence in the Nuclear Regulator 119, 120 (2004).

[98] Id. at 121.

[99] See Valentina Drofa, Trust Me If You Can: Why Reputation Capital Is a Must for Fintech Startups in This Economic Downturn, Forbes (Feb. 6, 2023, 9:45 AM), https://www.forbes.com/councils/forbesbusinesscouncil/2023/02/06/trust-me-if-you-can-why-reputation-capital-is-a-must-for-fintech-startups-in-this-economic-downturn/ [https://perma.cc/42KU-GTAB] (arguing that reputational capital is an intangible asset that can be crucial for a company’s long term success).

[100] See Spangler, supra note 69.

[101] Joanne Liou, What are Small Modular Reactors, Int’l Atomic Energy Agency (Sept. 13, 2023), https://www.iaea.org/newscenter/news/what-are-small-modular-reactors-smrs [https://perma.cc/P48N-BX7Z].

[102] Office of Nuclear Energy, supra note 45.

Navigating Intoxicated Parenting: A Call for Clear Guidelines in Kentucky Law

Download a PDF Version

Navigating Intoxicated Parenting: A Call for Clear Guidelines in Kentucky Law

Emily Prince*

Introduction

While no specific age is provided in Kentucky law for when a child may stay home alone, in certain circumstances, Child Protective Services (CPS) will substantiate neglect against parents who leave their child unattended.[2] This occurs if the child is, for whatever reason, incapable of meeting their immediate needs while unattended in such a way “that the physical health and safety of the child is negatively affected.”[3] Similarly, if the child is of sufficient age and mental capacity so that the child is not placed at risk of harm by being alone, CPS will not substantiate a finding of supervision neglect against the parents or legal guardians.[4] CPS social workers often piggyback off of supervision neglect to substantiate findings of neglect against parents who are physically present but too intoxicated to care for the basic needs of their children, thereby negatively affecting the physical health and safety of the child.

An interesting conundrum occurs when the child is sufficiently capable of providing for their own immediate needs, yet the parent is physically present and intoxicated. In instances such as these, I, a former Kentucky CPS social worker from 2021 to 2022, was advised by different supervisors in different cases to do different things. In the first case, I was advised to unsubstantiate the allegation of neglect because there was no proof that the parental substance use affected the child. In the second case, I was advised to substantiate the allegation of neglect because the parental substance use alone does negatively affect the child. The reasons given were that in the case of an emergency, a parent would be unable to transport the child to a hospital or give consent to treatment, parental substance abuse places the child at greater risk of other abuse and neglect, and it places the child at risk of accidental ingestion or other exposure to drugs and drug paraphernalia. In both cases, the children were sufficiently competent such that a finding of supervision neglect would have been unsubstantiated should the child have been alone for the same amount of time.

Currently, Kentucky leaves significant room open for CPS and trial courts to find supervision neglect against a parent solely due to a parent’s misuse of substances, even though the parent did not expose the child to increased risk in other ways. Such a finding of neglect can lead to the child being removed from the home and placed with relatives or in foster care. While parental substance abuse may increase the risk of environmental hazards[5] and is correlated with negative social-psychological effects,[6] when these risks are not present or are minimized, the child’s interest in stability and maintaining family bonds and the state’s interest in preserving resources should be predominant. Unfortunately, the ambiguities in Kentucky’s statutory and administrative guidelines have proven ripe for CPS social worker discretion and inconsistency in finding parental substance misuse as child neglect. In response, Kentucky rule–makers should amend statutory and administrative guidelines to make clear that parental substance abuse alone, without more, is not grounds for substantiating neglect, but may be grounds for other interventions aimed at strengthening families and reducing the associated risks. 

     I.         Current Kentucky Law Leaves Too Much Room for Inconsistent Application 

A.     Existing Kentucky Legislation Leaves Significant Discretion for the Cabinet 

Kentucky Revised Statutes defines “abused or neglected child” in relevant part as:

(1) [A] child whose health or welfare is harmed or threatened with harm when:

(a) His or her parent, guardian, person in a position of authority or special trust, as defined in KRS 532.045, or other person exercising custodial control or supervision of the child: . . .

2. Creates or allows to be created a risk of physical or emotional injury as defined in this section to the child by other than accidental means;

3. Engages in a pattern of conduct that renders the parent incapable of caring for the immediate and ongoing needs of the child, including but not limited to parental incapacity due to a substance use disorder as defined in KRS 222.005;

4. Continuously or repeatedly fails or refuses to provide essential parental care and protection for the child, considering the age of the child; . . .

8. Does not provide the child with adequate care, supervision, food, clothing, shelter, and education or medical care necessary for the child's well-being when financially able to do so or offered financial or other means to do so . . .  [.][7]

Three points are noteworthy. First, parental substance abuse is mentioned only in subsection three. Second, to satisfy subsection three, the phrase, “[e]ngages in a pattern of conduct . . .” indicates that abuse or neglect in this instance requires a pattern of offenses, not just an isolated incident. Third, substance use disorder alone is insufficient to meet the criteria of abuse or neglect—the parent must also be incapable of meeting the child’s needs. In other words, the parent’s substance use must have an effect on the child.  

B.     Administrative Regulations Leave Significant Discretion for Worker 

922 KAR 1:330(2)(4) provides, in relevant part, that the Cabinet for Health and Family Services (Cabinet) shall: 

(b) Investigate or conduct an assessment upon receipt of a report that alleges neglect of a child perpetrated by a caretaker that may result in harm to the health and safety of a child in the following areas: . . .

2. Supervision neglect if the individual reporting has reason to believe that the physical health and safety of the child is negatively affected by lack of necessary and appropriate supervision; . . .

8. Neglect due to a caretaker's use of drugs or alcohol that results in:

a. A child born exposed to drugs or alcohol, as documented by a health care provider pursuant to:

(i) 42 U.S.C. 5106a(b)(2)(B)(ii); and

(ii) KRS 620.030(2);

b. A child's facilitated access to and use of drugs or alcohol that may result in a life-threatening situation for the child . . . [.][8] 

As substance abuse is only specifically mentioned regarding children’s access or exposure to drugs, social workers typically rely on supervision neglect when confronted with allegations of parental substance abuse.[9] The theory is that intoxication renders the parents unable to appropriately supervise their children. Although statutory and administrative guidance comes short in answering what constitutes “necessary and appropriate supervision,”[10] it nevertheless remains clear that the child must be detrimentally affected by the failure of the parents to supervise their child.[11] Inconsistency arises in practice concerning whether the “physical health and safety of the child is negatively affected” when the only potential for abuse arises from parental substance abuse in otherwise self–sufficient children. 

C.     Case Law Gives Rise to Unanswered Questions

M.C. v. Cabinet for Health and Family Services[12] almost squarely addresses the problem presented in the introduction.  Although the father regularly consumed alcohol around his three children, who were thirteen and fifteen at the time, he maintained that his drinking did not “have an effect on his ability to parent and care for his children” and refused to attend intensive outpatient treatment.[13] When he drank, the children observed a change in the appearance of his eyes and his words would be slurred.[14] He only drank at night and always drank away from the children on the deck.[15] When he drove the children to school in the morning, he was sober.[16] One child was bothered by his drinking and it sometimes led to arguments between the child and her father.[17] The children had good school attendance and were excelling in school.[18] The social worker had “no concerns about them being properly fed, clothed, or otherwise provided for.”[19] The home was described as “extremely cluttered” but not dirty, and there was no indication that anything in the home posed “a threat to the children’s health or well-being.”[20]

The trial court “found that the children were neglected under KRS 600.020(1)(a)2, 3, 4, and 8.”[21] Finding that there were no means available to leave the children inside the home due to the father’s refusal to stop drinking or attend intensive outpatient treatment, the trial court removed the children from the home.[22] The Cabinet changed the permanency goal of the family to adoption and abandoned reunification efforts.[23] The father, M.C., “appealed the family court’s decision to the Court of Appeals, which affirmed” the family court’s decision.[24]

M.C. appealed to the Supreme Court of Kentucky, and the Supreme Court overturned the trial court’s finding of neglect.[25] The Supreme Court acknowledged that KRS 600.020(1)(a)(2) allows a neglect finding where “a risk of abuse exists and does not require actual abuse prior to the child’s removal from the home or limitation on the contact with an abusive parent,”[26] but nevertheless held that “‘the risk of harm must be more than a mere theoretical possibility,’ it must be ‘an actual and reasonable potential for harm.’”[27] The Court relied on the children’s age and abilities in overturning the neglect finding but declined to create a categorical age in which a child cannot be subjected to neglect from a parent’s substance use.[28] The Court distinguished this case from one in which the child was a newborn and required care “nearly twenty-four hours a day.”[29] The Court also emphasized that the record was devoid of evidence indicating that the father’s alcoholism impacted the needs of the children in any detrimental way.[30] The Court stated that, while “M.C. would be well-advised to continue to seek substance use treatment,” his substance use had not rendered him neglectful of his children.[31]

The case of M.C. was somewhat unique in two respects. First, M.C.’s success can be attributed to his ability to appeal the trial court’s ruling and overcome the discretion afforded to trial courts’ determinations of fact. In neglect and abuse cases, the Cabinet must prove neglect or abuse only by a preponderance of the evidence.[32] “A family court’s finding of fact in [an abuse or neglect] action ‘shall not be set aside unless clearly erroneous.’”[33] Trial courts have broad discretion in finding whether a child has been neglected or abused[34] and significant leeway in safekeeping their determinations from being overturned on appeal.[35] M.C. went through two appeals before the Supreme Court of Kentucky overturned the trial court’s finding of neglect.[36] Not all parents deemed neglectful due to a substance abuse disorder will be fortunate enough to have the resources to appeal once, let alone twice.[37]

Second, in M.C., the father was using alcohol, not illegal substances. Although M.C. did not address the distinction, it leaves open the question of whether the illegal nature of other substances places the children at higher risk of not having their needs met. Whether through causation or correlation, parental alcohol use appears to have better outcomes for those in the child protection systems than parental use of illegal drugs.[38] The Court also leaves open the question of what abuse or neglect due to substance abuse would look like for children who are self–sufficient and able to be on their own without supervision for extended periods.

In Cabinet for Health and Family Services on behalf of C.R. v. C.B.,[39] which the appellate court heavily relied on and the Supreme Court of Kentucky distinguished in M.C.,[40] the Court found that substance use alone can be the basis of a neglect finding without additional finding of harm to the particular child when the substance use has been the basis for a prior involuntary termination of parental rights (TPR).[41] In C.B., the father of a newborn who tested positive for suboxone at birth due to the mother’s prenatal substance use “admitted to using heroin, Percocet, and off-street suboxone.”[42] The father had previously had his parental rights to other children involuntarily terminated.[43] In upholding the trial court’s finding of neglect and reversing the Court of Appeals, the Supreme Court of Kentucky stated that the father’s “prior history of drug abuse was found to have created a risk of harm in the prior TPR proceeding” and “the family court certainly does not have to wait for actual harm to occur before taking protective measures.”[44] The Court reiterated that “[KRS 600.020(1)(a)(2)], as written, permits the court’s finding where a risk of abuse exists and does not require actual abuse prior to the child’s removal from the home or limitation on the contact with an abusive parent.”[45] 

What exactly constitutes “a risk of abuse” is left undefined and subject to interpretation. The Court has insisted that “risk of harm must be more than a mere theoretical possibility” but “an actual and reasonable potential for harm.”[46] Surely, an alcoholic father of teenagers increases some risk of harm, yet M.C. found that it did not. While C.R. focused mostly on the prior TPR of the father,[47] the Court in M.C. made clear that the children’s ages were a predominant factor for the distinction.[48] M.C. also made clear that the fact that the children’s needs had not gone unmet was a motivating factor,[49] but no evidence was presented in C.R. that the newborn’s needs had gone unmet due to the father’s substance use.[50] What is left after these two cases is confusion, and confusion is a ripe breeding ground for inconsistent application of the law.

     II.         Supervision Neglect as a Basis for Finding Neglect Due to Parental Substance Abuse 

Given that no separate category of neglect exists for situations in which a parent is present but intoxicated, Cabinet workers must find that a case meets the criteria for supervision neglect before substantiating an allegation of neglect in such situations. The question becomes, then, whether, with all else being equal, the criteria for evaluating whether a child can be left unattended should be the same for when a child can be left alone with an intoxicated parent. Kentucky does not have a set age for when a child is permitted to stay alone.[51] Instead, Kentucky will accept a report for supervision neglect “if the individual reporting has reason to believe that the physical health and safety of the child is negatively affected by lack of necessary and appropriate supervision.”[52] Beyond this, workers are given a high level of discretion in how they determine whether a child may be left alone. One Cabinet worker, Misty, reported that she bases her discretion on “age, maturity, cognitive ability, etc.”[53] Misty assesses the child’s ability to respond appropriately in case of an emergency by providing the child with emergency scenarios and asking the child how they would respond, and also determining whether the child has access to emergency numbers.[54] Other workers will likely use similar criteria, but each worker will evaluate the information obtained differently.

Evaluating whether other factors should be considered beyond the age and abilities of the child when determining whether the child may be left with an intoxicated caregiver requires asking whether adding an intoxicated caregiver increases the risks that would otherwise exist if the child were left alone. The answer to this is in the affirmative—a present but intoxicated caregiver does pose potential risks to a child that would not be present if the child were alone.  A caretaker using substances exposes children to the risk of coming into contact with environmental hazards such as alcohol, drugs, or drug paraphernalia, which may lead to accidental overdose or physical injury to young children[55] and experimental drug use in older children.[56] These additional risks, however, fall under the Cabinet’s category of environmental neglect and could be charged as such if the parent exposes the child to a dangerous environment by leaving alcohol, drugs, and drug paraphernalia unsecured.[57]  These are distinct categories that must be separately satisfied. Fully or partially meeting the criteria for one does not substitute for fully meeting the criteria of another.

Another potentially added risk of an intoxicated parent versus an absent parent is that, in the case of an emergency, the parent would be unable to consent to treatment. Medical practitioners must gain the informed consent of a patient or their representative before providing treatment[58] and failure to do so can be considered malpractice.[59] Informed consent requires that the person giving the consent is able “to understand relevant medical information and the implications of treatment alternatives and to make an independent, voluntary decision.”[60] Depending on the level of intoxication, a parent may not have the requisite mental capacity to understand these risks and provide informed consent.[61] Fortunately, the Kentucky legislature has anticipated times when medical treatment should be given without pause.[62] In such cases, there is an exception to the requirement of informed consent for emergencies[63] and when “in the professional's judgment, the risk to the minor's life or health is of such a nature that treatment should be given without delay and the requirement of consent would result in delay or denial of treatment.”[64]

Of course, should these provisions fail to accommodate the situation and the child be forced to go without medical care based on the parent’s inability to consent, this potentially could be considered medical neglect. However, the criterion for medical neglect makes this scenario unlikely if not impossible. Medical neglect requires that the child not receive treatment for injury, illness, or disability that may be life threatening, “result in permanent impairment,” “interfere with normal functioning and worsen,” or “be a serious threat to the child’s health due to the outbreak of a vaccine preventable disease, unless the child is granted an exception to immunization pursuant to [statute].”[65] The statutory exceptions to informed consent discussed above ensure that consent is not a hurdle to seeking treatment for the sorts of ailments that would be considered medical neglect if gone untreated. Transportation to the hospital in the case of an emergency could still be a barrier to treatment when the driver is too intoxicated to drive, but limited transportation is not always considered neglect, such as when it is due to poverty.[66] Ambulatory services are capable of transporting children to the hospital in situations such as these.  Therefore, although intoxicated parents do increase risks, these risks are either considered neglect under a separate category or are sufficiently minimized to not constitute neglect.
 

III.         Considerations and Competing Interests

Determining how to address parental substance abuse in a child abuse or neglect context requires a weighing of multiple factors including parental rights, the best interests of the child, and the state’s interests in conserving its resources.

A.     Preserving Parental Rights 

Parents have a long–established fundamental liberty interest in the care, custody, and control of their children,[67] meaning that “a parent has a basic and fundamental right to be free from governmental interference when parenting a child.”[68] This is true even if the parents “have not been model parents.”[69] The Court has recognized a parent’s “‘desire for and right to the companionship, care, custody, and management of his or her children’ is an interest far more precious than any property right.”[70]  Before a parent can be deprived of this fundamental liberty interest by the state, the parent is entitled to procedural safeguards.[71]

In state–initiated abuse or neglect proceedings, the Cabinet must prove abuse or neglect as defined in KRS 600.020[72] by a preponderance of the evidence.[73] In K.H. v. Cabinet for Health and Family Services, the Court of Appeals of Kentucky refused to uphold neglect findings where the risk of harm to the child was a “mere theoretical possibility” and where the conclusion was merely speculative and “based upon the compounding of inferences upon inferences.”[74] In so deciding, the court stressed the dangers of “wide-reaching intrusion by the state into the parent-child relationship” and warned that allowing the Cabinet to find neglect based on attenuated circumstances would give the state too much power in imposing its views about proper parenting.[75] A parent against whom neglect is found is placed on a registry and barred from working many jobs involving children and other vulnerable populations.[76] Given what a parent has at stake in abuse and neglect proceedings, it is crucial that a court ensure that the parent placed the child at risk of actual harm and not merely at risk of violating social norms.[77] 

B.     Preserving State Resources 

The state has “a fiscal and administrative interest in reducing the cost and burden” of neglect and abuse proceedings.[78] In 2016, Kentucky spent an estimated $560 million on child neglect and maltreatment.[79] It is nearly impossible to estimate how much money Kentucky spends on instances similar enough to the introductory scenario to be meaningful and thus determine how much Kentucky would save by constraining the criteria in which this sort of neglect is found. Nonetheless, a natural inference is that a narrower definition of abuse or neglect would result in fewer cases of neglect and less money expenditure by the state for investigating allegations and funding foster homes. Given that the state pays between $27 and $108.64 per day per child in foster care just to reimburse the foster parents, not factoring in other costs such as Medicaid coverage or food assistance[80], minimizing the number of children that go to foster care is a logical way to reduce financial expenditure by the state.

C.     Mitigating Harm to Children

Parental substance abuse poses dangers beyond inadequate supervision. CPS workers are highly aware that parental substance abuse is associated with an increased risk of child abuse and neglect.[81] Of course, correlation doesn’t necessarily mean causation. Many factors contribute to both substance abuse and child maltreatment, including parental mental illness, lower socioeconomic status, lower education, higher levels of stress in the home, and residential and caretaker instability.[82] Interestingly, child abuse rates are the same for parents with a current diagnosis of substance abuse as parents with a prior diagnosis of substance abuse, suggesting that sobriety does not mitigate the likelihood of committing abuse.[83] This implies that substance abuse itself is not the cause of child abuse but rather another symptom of a complex interplay between social, biological, and environmental factors.

Perhaps, then, the most efficient way to address child abuse through the lens of parental substance misuse is to broaden the scope of the inquiry to include other risk factors associated with parental substance misuse. In this vein, perhaps the state should consider making parental mental illness, lower socioeconomical status, lower education, higher levels of stress in the home, and residential and caretaker instability child abuse or neglect. Of course, this idea would shock the conscience of the average citizen, who would balk at the idea by saying that children are always exposed to risks, and such is part of life. There is some risk in giving a child a deadly weapon, yet school aged children all across the country are armed every year with bows and arrows in the name of archery. There is always a risk that a child will choke on solid foods, yet no pediatrician would advise the parents to maintain a liquid diet until the child is an adult. For that matter, parental cigarette smoking poses risks to children without benefiting them in any way, yet Kentucky does not make cigarette smoking by parents child abuse.[84]

This creates an interesting quandary about which risks society is willing to tolerate and which risks cross the line into abuse or neglect. The answer to this seems to focus not on the amount of risk but on the social acceptance of the act leading to the risk. For example, in my experience as a social worker and observing other workers, I noticed that the parent’s reasons for leaving a child unsupervised influenced whether the worker substantiated the neglect allegation. If the parents left the child home alone to go to work, the outcome would be more favorable to them than if they had left the child to visit a paramour. The risk to the child was the same but the outcomes of the cases were different. A similar bias seems to be at play regarding the “risk” of parental substance use and inadequate supervision. When discussing this topic with my former supervisor and coworkers, I was advised that if the parent is incapacitated due to drugs, this is neglect because the parent is unavailable should the child need medical treatment. At the same time, if the parent is sedated for surgery, this would not be neglect because it is for medical reasons. Again, the risk to the child is the same but the cases have different outcomes.

It is thus fair to conclude that, for better or for worse, in the abuse and neglect arena, the “risks” of parental substance abuse encompass more than just the risks to the child. The “risks” include at least some amount of social judgment of the proprieties of the parent’s actions. This is particularly relevant when contemplating whether to distinguish M.C. v. Cabinet for Health and Family Services[85] (discussed above) from the introductory scenario. M.C. involved parental alcohol abuse.[86] Studies estimate between 12% and 70% of child abusers are alcoholics.[87] This overlaps significantly with the estimated 40% to 80% increase in child abuse brought on by parental substance misuse other than alcohol.[88] This indicates that there may not be a meaningful distinction drawn between the effects of parental substance abuse and parental alcohol abuse regarding child abuse sufficient to justify differential treatment of them in the dependency, neglect, and abuse courts. 

D.     Preventing Further Harm to Children by Removal

When the Cabinet believes there is sufficient evidence for the court to find neglect or abuse and the court agrees, the child may be removed from their family home and either placed with relatives, fictive kin, or put in foster care.[89] While removing a child from an at–risk home may intuitively seem to be in the best interests of the child, it is often the case that removing the child from their parents causes more psychological trauma than if the child had been left in the home.[90] In addition to the trauma associated with removal, children are frequently exposed to abuse and neglect in their foster homes.[91]

IV.         Balancing Risk and Intervention: The Argument for ‘Services Needed’ Approach 

Kentucky implemented its juvenile code to protect children and maintain family bonds by adopting effective policies and practices that are supported by empirical evidence and “offering all available resources to any family in need of them.”[92] Clearly, parental substance abuse is a real issue of concern for those concerned about child safety and welfare. While this Note argues that the current state of the law does not call for a finding of neglect for parental substance use beyond what is appropriate for such a finding under supervision neglect (or the narrow circumstances defined in 922 KAR 1:330(2)(4)(b)(8)),[93] it would be naïve to ignore the increased risk that accompanies such behavior. Parents that use substances expose their children to an increased risk of educational delays; insufficient dental and medical attention; mental, behavioral, and emotional issues; injury due to dangerous home environment; and substance abuse issues for the child themselves as they grow older.[94] Even if these risks are not sufficient to justify classifying the root behavior as neglect or abuse, perhaps other routes can be taken to improve outcomes.

Instead of substantiating or unsubstantiating an allegation of abuse or neglect, the Cabinet can instead make a “services needed” finding.[95] This finding is appropriate when the family has high risk factors but “the child was found to be safe during the child protection intervention” and the risk factors are at an insufficient level to open a protection case.[96] The goal of such a finding is to reduce these risk factors and provide services to the family.[97] If the Cabinet makes a “services needed” finding, the Cabinet would open an ongoing case and work with the family to provide empirical and strengths based preventative services, such as substance abuse treatment and mental health counseling.[98] These services are voluntary and the family is free to refuse them.[99] Should the family refuse and the Cabinet lacks the evidence to make a finding of abuse or neglect, the case is closed without providing further services.[100]

This avenue is the appropriate avenue for the introductory scenario. It recognizes that substance abuse raises the risk of maltreatment but isn’t in itself maltreatment. It allows the family the opportunity to receive services before the issues turn into abuse but abstains from encroaching on the parents’ fundamental rights. It also allows the state to conserve its resources and spend them wisely by investing them in those willing to make meaningful changes. 

Conclusion 

Understandably, the Kentucky legislature has given room to the Cabinet to decide what constitutes abuse or neglect. Also understandably, the Cabinet has attempted to give its workers wide enough latitude to deal with real life situations as they arise. These situations are varied, complex, and hard to predict. It would be impossible to exhaustively anticipate and provide guidance on all potential scenarios. One scenario, nonetheless, is reoccurring and demands more thorough guidance: the situation in which a child that would otherwise be competent to be unsupervised is left to the sole care of an intoxicated parent and no other associated risk is present. The law as it stands seems to indicate that this situation would not encompass neglect, but experience indicates a variety of approaches by differing workers and supervisors and results in different outcomes for materially equal cases. To prevent such inconsistency, Kentucky lawmakers should provide more guidance about how to address this situation. The most logical approach is to unsubstantiate claims of neglect in such a scenario and instead offer a “services needed” finding. This approach recognizes that risks are present when parents abuse substances but honors the parent’s constitutional rights, considers the best interests of the child, and takes into account the state’s interest in ensuring stability for the child and familial unity while also managing state resources efficiently. Kentucky lawmakers should update relevant laws to reflect these goals and remove discretion inconsistent with this recommendation.

* J.D Expected 2025, University of Kentucky Rosenberg College of Law; BS Criminal Justice 2020, Eastern Kentucky University.

[2] Ana Rocío Álvarez Bríñez, At What Age Can You Leave Children Home Alone in Kentucky?, Louisville Courier J., https://www.courier-journal.com/story/news/2023/06/09/planning-on-leaving-your-kids-alone-this-summer-get-ready/70271092007/ [https://perma.cc/DT8M-ZV9X ] (June 10, 2023, 5:45 PM).

[3] See 922 Ky. Admin. Regs. 1:330 (2023).

[4] See id.

[5] Vincent C. Smith & Celeste R. Wilson, Families Affected by Parental Substance Use, 138 American Acad. of Pediatrics e2, e4 (Aug. 2016), http://publications.aap.org/pediatrics/article-pdf/138/2/e20161575/1507458/peds_20161575.pdf [permalink unavailable].

[6] See Jessica M. Solis, Julia M. Shadur, Alison R. Burns & Andrea M. Hussong, Understanding the Diverse Needs of Children Whose Parents Abuse Substances, 5 Current Drug Abuse Rev. 135, 135 (2012).

[7] Ky. Rev. Stat. Ann. § 600.020 (West 2022) (emphasis added).

[8] 922 Ky. Admin. Regs. 1:330(2)(4)(b) (2023).

[9] Email interview with Misty Adkins, Social Service Worker, Cabinet for Health & Fam. Servs. (Jan. 31, 2024, 8:49 AM EST) (on file with author).

[10] See Ky. Rev. Stat. Ann. § 600.020 (West 2022); Ky. Rev. Stat. Ann. § 620.020 (West 2019); 922 Ky. Admin. Regs. 1:330 (2023).

[11] 922 Ky. Admin. Regs. 1:330(2)(4)(b) (2023).

[12] M.C. v. Cabinet for Health & Fam. Servs., 614 S.W.3d 915 (Ky. 2021).

[13] Id. at 919.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id. at 919–20.

[20] Id. at 920.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id. at 917.

[26] Id. at 923 (citing Cabinet for Health & Fam. Servs. ex rel. C.R. v. C.B., 556 S.W.3d 568, 576 (Ky. 2018)).

[27] Id. (citing K.H. v. Cabinet for Health & Fam. Servs., 358 S.W.3d 29, 32 (Ky. Ct. App. 2011)).

[28] Id. at 924–25.

[29] Id. at 924 (distinguishing Cabinet for Health & Fam. Servs. ex rel. C.R. v. C.B., 556 S.W.3d 568, 573 (Ky. 2018)).

[30] Id.

[31] Id. at 929.

[32] Ky. Rev. Stat. Ann. § 620.100(3) (West 2021).

[33] M.C., 614 S.W.3d at 921 (citing Ky. R. Civ. Proc. 52.01).

[34] Cabinet for Health & Fam. Servs. ex rel. C.R. v. C.B., 556 S.W.3d 568, 573 (Ky. 2018) (citing Dep’t for

Human Res. v. Moore, 552 S.W.2d 672, 675 (Ky. Ct. App. 1977)).

[35] See id. at 574.

[36] M.C., 614 S.W.3d at 920.

[37] See Maia Szalavitz, Addictions Are Harder to Kick When You’re Poor. Here’s Why, Guardian (June 1, 2016), https://www.theguardian.com/commentisfree/2016/jun/01/drug-addiction-income-inequality-impacts-recovery?CMP=share_btn_fb [https://perma.cc/HRN9-3NG8] (“addiction . . . is far less likely to hit people who have stable, structured lives and decent employment than it is those whose lives are marked by uncertainty and lack of work.”).  

[38] Child Welfare Info. Gateway, Parental Substance Use: A Primer for Child Welfare Professionals, 4 (2021), https://www.childwelfare.gov/resources/parental-substance-use-primer-child-welfare-professionals [permalink unavailable].

[39] C.B., 556 S.W.3d 568.

[40] M.C., 614 S.W.3d at 923–25.

[41] C.B., 556 S.W.3d at 576.

[42] Id. at 570.

[43] Id.

[44] Id. at 576.

[45] Id.

[46] M.C., 614 S.W.3d at 923.

[47] C.B., 556 S.W.3d at 575–76.

[48] M.C., 614 S.W.3d at 924–25.

[49] Id. at 924.

[50] See C.B., 556 S.W.3d at 576 (illustrating that the Court bases its holding on the father’s condition and drug use without evaluating whether the needs of the children were going unmet).

[51] Compare Md. Code Ann., Fam. Law § 5-801 (West 1986) (stating that a caretaker may not leave a child eight years of age in a building or vehicle unless someone thirteen years of age or older is with them), and Or. Rev. Stat. Ann. § 163.545 (West 1991) (stating that a custodian or caregiver may be charged with neglect if they leave a child under 10 years of age unattended), with Ky. Rev. Stat. Ann. § 600.020 (West 2022) (failing to include any age restriction on leaving children unattended under neglect parameters).

[52] 922 Ky. Admin. Regs. 1:330 (2023).

[53] Email interview with Misty Adkins, supra note 9.

[54] Id.

[55] See Sofie Kuppens, Simon C. Moore, Vanessa Gross, Emily Lowthian & Andy P. Siddaway, The Enduring Effects of Parental Alcohol, Tobacco, and Drug Use on Child Well–Being: A Multilevel Meta–Analysis, 32 Dev. Psychopathology 765, 765 (2019). For a discussion regarding the causes of accidental overdose in children, see Brian C. Kelly, Mike Vuolo, & Laura C. Frizzell, Pediatric Drug Overdose Mortality: Contextual and Policy Effects for Children Under 12, Pediatric Rsch. 1258, 1259 (May 21, 2021).

[56] How Do Teens Find Drugs?, Recovery Village, https://www.therecoveryvillage.com/teen-addiction/drug/how-teens-get-drugs/  [https://perma.cc/K3HU-3QRL] (Aug. 30, 2024).

[57] Cabinet for Health & Fam. Servs., Standards of Practice Manual: 2.3 Acceptance Criteria (effective Oct. 1, 2022), https://manuals-sp-chfs.ky.gov/chapter2/Pages/2-3.aspx [https://perma.cc/SBJ9-BNYL].

[58] Opinion 2.1.1: Informed Consent, AMA Code of Ethics, https://code-medical-ethics.ama-assn.org/ethics-opinions/informed-consent [https://perma.cc/7MR2-VWQP] (last visited Apr. 12, 2025).

[59] See Ky. Rev. Stat. Ann. § 411.167(4) (West 2019); Informed consent in Kentucky, Gray L., PLLC (Sept. 25, 2019), https://www.dgraylaw.com/blog/2019/09/informed-consent-in-kentucky/#:~:text=Physicians%20must%20get%20

informed%20consent,informed%20consent%20constitutes%20medical%20malpractice [permalink unavailable].

[60] Opinion 2.1.1: Informed Consent, supra note 58.

[61] See Catherine A. Marco, Does Patient Autonomy Outweigh Duty to Treat?, 5 Am. Med. Ass’n J. Ethics 37, 39 (2003).

[62] Ky. Rev. Stat. Ann. § 304.40–320 (West 1976).

[63] Id. § 304.40–320(3).

[64] Ky. Rev. Stat. Ann. § 214.185(5) (West 2021).

[65] Cabinet for Health & Fam. Servs., supra note 57.

[66] See Ky. Rev. Stat. Ann. § 600.020(1)(a)(8) (West 2022).

[67] Prince v. Massachusetts, 321 U.S. 158, 166 (1944); Santosky v. Kramer, 455 U.S. 745, 753 (1982).

[68] Z.T. v. M.T., 258 S.W.3d 31, 33 (Ky, Ct. App. 2008).

[69] Santosky, 455 U.S. at 753.

[70] Id. at 758–59 (quoting Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 27 (1981)).

[71] Id. at 753–54.

[72] Ky. Rev. Stat. Ann. § 600.020 (West 2022).

[73] K.H. v. Cabinet for Health & Fam. Servs., 358 S.W.3d 29, 30 (Ky. Ct. App. 2011).

[74] Id. at 32 (overturning neglect finding against mother who refused to keep her children away from their father who had substantiated sexual abuse findings against a different child because the risk of harm to her children was too attenuated to constitute neglect).

[75] Id. at 31.

[76] See National Background Check Program (NBCP), Cabinet for Health & Fam. Servs., https://www.chfs.ky.gov/agen

cies/dcbs/dcc/Pages/nationalbackgroundcheck.aspx [permalink unavailable] (last visited Apr. 12, 2025).

[77] See K.H., 358 S.W.3d at 31. (“It is not enough for the Cabinet to show that K.H. would be well–advised to agree to the terms of the Aftercare Plan. The applicable statutory definition requires a finding that K.H. created or allowed to be created a risk that an act of sexual abuse will be committed upon the children”).

[78] Santosky v. Kramer, 455 U.S. 745, 766 (1982).

[79] Prevent Child Abuse Kentucky, Primary Prevention of Child Abuse and Neglect, Prevent Child Abuse Am., https://apps.legislature.ky.gov/CommitteeDocuments/320/12791/7%2022%202020%20Primary%20Prevention%20KY.pdf [https://perma.cc/K83C-43WW ].

[80] Cabinet for Health & Fam. Servs., Standards of Practi. Manual: 12.24 Per Diem rates (Including Specialized Foster Care) (effective Feb. 15, 2024), https://manuals-sp-chfs.ky.gov/chapter12/Pages/12-24.aspx#Practice_Guidance [https://perma.cc/GW3T-P3KY].

[81] See Cabinet for Health & Fam. Servs., Standards of Practi. Manual: 7.4 CPS Prevention Planning (effective June 29, 2020), https://manuals-sp-chfs.ky.gov/chapter7/Pages/7-4.aspx [permalink unavailable]; Kuppens, Moore, Gross, Lowthian & Siddaway, supra note 55.

[82] Solis, Shadur, Burns & Hussong, supra note 6.

[83] Id.

[84] Id.

[85] M.C. v. Cabinet for Health & Fam. Servs., 614 S.W.3d 915 (Ky. 2021).

[86] Id. at 918.

[87] Effects of Parental Substance Abuse on Children and Families, Am. Acad. of Experts in Traumatic Stress, https://www.aaets.org/traumatic-stress-library/effects-of-parental-substance-abuse-on-children-and-families [https://perma.cc/4NNY-4S7D ] (last visited Apr. 12, 2025).

[88] Solis, Shadur, Burns & Hussong, supra note 6.

[89] See Cabinet for Health & Fam. Servs., Standards of Practi. Manual: 5.1 Relative and Fictive Kin Placement Consideration (effective Oct. 4, 2023), https://manuals-sp-chfs.ky.gov/chapter5/Pages/5-1.aspx [https://perma.cc/63XK-8RCH]; Ct. Improvement Program State Team, Dependency, Neglect and Abuse Cases: Know Your Rights and Responsibilities 5–8 (Oct. 2020), https://apps.legislature.ky.gov/CommitteeDocuments/17/13364/July%207%

202021%20Vanover%20Dependency%20Neglect%20and%20Abuse%20Booklet.pdf [permalink unavailable].

[90] Shanta Trivedi, The Harm of Child Removal, 43 N.Y.U. Rev. of L. & Soc. Change 523, 527–41 (2019).

[91] Id. at 542–44.

[92] Ky. Rev. Stat. Ann. § 600.010(2)(a) (West 2014).

[93] 922 Ky. Admin. Regs. 1:330(2)(4)(b)(8) (2023).

[94] Solis, Shadur, Burns & Hussong, supra note 6.

[95] Cabinet for Health & Fam. Servs., Standards of Practi. Manual: 2.22 Making a Finding, Notifications, and Court Involvement (effective Oct. 19, 2022), https://manuals-sp-chfs.ky.gov/chapter2/Pages/2-22.aspx [permalink unavailable].

[96] Id.

[97] Id.

[98] Id.

[99] Id.

[100] Id.

Blank Space: Film and Television’s Missing Statute

Download a PDF Version

Blank Space: Film and Television’s Missing Statute

Meghan Goins*

Introduction

Artists and consumers alike are currently grappling with rapidly changing technology. As digital media grows in popularity and prominence, some art forms, such as music, may be more harmonious with copyright law than others. Copyright law should be applied more evenly across various art forms and streaming platforms to better incentivize creativity and make art more easily accessible to consumers. Recognizing that music copyright needed to be updated, Congress has recently acted to further those interests for the music industry. The passage of the Orrin G. Hatch-Bob Goodlatte Music Modernization Act (MMA)[2] was a legislative response to the significant changes in the music industry.[3] To best achieve the goals of copyright law while balancing the interests of copyright holders and consumers, a statute analogous to the MMA should be passed for the film and television industries.

It will be important to first conduct a brief overview of the MMA and the history of the evolving vehicles for the consumption of copyright works. Rather than analyzing every major streaming platform, this Note will examine a few platforms which hold the most consumer attention regarding the specific art forms the platform provides access to. This Note will explore recent litigation and new developments within copyright law to determine how to achieve the goal of greater consumer accessibility to art. Ultimately, that discussion will lead to the recommendation that copyright standards for music should be adapted to visual media through a statute similar to Title I of the MMA.

I.      Background

Copyrights are automatically created when an artist (also called the “author” for purposes of copyright law) generates a creative work in a fixed medium.[4] Beyond the copyright automatically generated when a work is created, artists may also seek a copyright registration, which functions as a “public record of . . . ownership” and gives artists “access to federal courts in the case of infringement.”[5] To obtain copyright registration for a musical composition, artists may register “an individual sound recording or musical work,” “up to ten unpublished works all by the same author,” or “up to twenty musical works or twenty sound recordings if the works are created by the same author or have at least one common author, and if the claimant for each work in the group is the same.”[6] For films, a copyright is also automatically created when the film is generated, but copyright law protects “only the expression fixed in a motion picture (camera work, dialogue, sounds, and so on)” and “does not cover the idea or concept behind a work or any characters portrayed in it.”[7] Television shows are automatically protected by copyright law as well. For any type of media, though, registration is required “in order to file an infringement lawsuit.”[8]

Licenses allow a person or entity other than the copyright holder to legally use the copyrighted work. To obtain a license, one can contact the owner of the copyright for a particular work.[9] Importantly, “licenses allow a copyright owner to retain the rights while giving someone else a right to exercise some of them. . . .”[10] The rights a licensee has depend on whether the license granted is exclusive or nonexclusive, aside from the inability of a licensee to “authorize others to exercise the rights to that work without permission from the copyright owner.”[11] Additionally, no licensee can “sue and potentially recover damages for [copyright] infringement.”[12] If the license granted is nonexclusive, the original copyright owner of the work may still authorize other entities to use the work, and the original copyright owner may still “[use] the work in the manner and length of time described in the license.”[13] If the copyright owner grants an exclusive license, no one other than the exclusive licensee may use the work in the agreed upon manner for the duration of the license agreement, and no one else may be granted a license for that work during that time.[14]

A plaintiff in an action for copyright infringement may recover damages if the plaintiff can show “(1) ownership of a valid copyright, and (2) copyright of constituent elements of the work that are original.”[15] In the event of copyright litigation, the fair use doctrine allows an entity to, in some circumstances, use a copyrighted work without first obtaining a license from the copyright holder.[16] When a particular use falls under the fair use doctrine, it is not an infringing use of the copyrighted work.[17] The fair use doctrine is an existing mechanism within copyright law that allows for greater access to creative works.[18] In addition to the fair use doctrine, certain statutes have been created to address the needs of particular creative industries, such as the MMA for the music industry.[19] The following sections will explain the technological changes that necessitated the creation of the MMA, and the provisions of it that could resolve problems within the film and television industries.

II.     Accessibility of Music

A.     The Music Modernization Act

Following changes to modes of music consumption, the Music Modernization Act was adopted by Congress in 2018, which allows copyright owners to obtain a compulsory license, through which copyright owners can receive royalties for their work without needing to grant “explicit permission” each time a license is sought from that copyright owner.[20] The MMA reflects a recent legislative update in the realm of copyright law, expanding it beyond the changes made to copyright law under the Federal Copyright Act of 1976.[21] The MMA is divided into three Titles: “Musical Works; Modernization Act, The Classics Protection and Access Act; and The Allocation for Music Producers Act.”[22]

The first of the three Titles “replaces the existing song-by-song compulsory licensing structure for making and distributing musical works with a blanket licensing system for digital music providers to make and distribute digital phonorecord deliveries (e.g., permanent downloads, limited downloads, or interactive streams).”[23] Blanket licenses give the licensee the ability to use and “access. . . a rightsholder’s entire catalog.”[24] Successfully obtaining a blanket license also protects the licensee from “an action for infringement. . . .”[25] To obtain a blanket license under the MMA, one must satisfy certain requirements.[26] To be eligible, the “primary purpose in making phonorecords of the musical work [must be] to distribute them to the public for private use, including by means of digital phonorecord delivery.”[27] One must also “[h]ave a direct contractual, subscription or other economic relationship with listeners or. . . must exercise direct control over providing the service to the listeners; [b]e able to report revenues (or other consideration) generated by the service; and [b]e able to provide certain reporting on usage of sound recordings of musical work.”[28]

As of January 1, 2021, the blanket licensing system, in its current form, is being operated by the Mechanical Licensing Collective (MLC), established by the MMA.[29] Collective copyright management organizations can help artists to earn more for their work than they would under a performing rights organization (PRO), from which artists only earn performance royalties, or without either a PRO or a Collective Management Organization (CMO). [30] CMOs help artists to earn royalties for both the performance of their work and to earn “mechanical royalties.”[31] Mechanical royalties are earned when a licensee “reproduce[s] a piece of music onto CDs, DVDs, records or tapes.”[32]

B.     Technological and Legal Progression

Prior to the Music Modernization Act’s passage in 2018, several important technological shifts changed the way in which consumers engage with musical works.

Early streaming platforms violated copyright law by distributing music without first obtaining licenses or permission from the copyright holders of the music.[33] Without the protection of the fair use doctrine, which would have allowed these early platforms to continue operating legally, such distribution constituted copyright infringement. For instance, LimeWire was sued by various record labels alleging that LimeWire had directly infringed on their copyrighted works and had induced copyright infringement.[34] LimeWire ultimately settled and agreed to pay over $100 million in damages.[35]

C.     Streaming Titans and Digital Downloads

As technology continued to progress during the 2000s and 2010s, other legal streaming platforms rose in popularity. These platforms, to remain competitive, introduced new features to the market, such as digital downloading. Today, Apple Music, Spotify and SoundCloud are among the three most used music streaming platforms by consumers.[36] Spotify, which now has 640 million monthly users,[37] has a vast library of music[38] that spans countless genres, decades, and cultures.[39] Spotify is available in the form of a subscription, or as a free service with advertisements and restrictions on features such as the ability to “skip” songs.[40] Spotify had the largest payout to artists of any streaming platform in 2022, four years after the passage of the MMA.[41] To further illustrate the manner in which Spotify has grown to dominate the music streaming market, “[o]nline streaming services such [as] Spotify and Apple Music have become the music industry’s single biggest revenue source, overtaking physical sales and digital downloads for the first time.”[42] When a song or other audio on a streaming platform is played, artists can receive a payout.[43] These royalties consist of recording and publishing royalties. Importantly, publishing royalties “are [now] issued to publishers, collecting societies, and mechanical agencies.”[44]

Another notable feature of many current day streaming services is the ability to download the content found on the platform. Digital downloads, along with streaming, “predominate in the United States,”[45] rather than accessing music through physical copies such as vinyl, CDs, or other means. Digital downloads also allow streaming platform users to either obtain a permanent copy of a particular musical work, or to obtain a copy of a musical work “for offline listening.”[46] This gives consumers access to music without needing to obtain a physical copy of the music, meaning that consumers now have instantaneous access to nearly any song, provided it has been uploaded to the internet.[47] Both “the reproduction right” of “the sound recording and the underlying musical composition” are “implicat[ed]” by digital downloads.[48] The “reproduction right” is a right granted to artists through copyright law, giving them the exclusive right “to perform the copyrighted work publicly by means of a digital audio transmission.”[49] The rights to “the sound recording and the underlying musical composition” are codified at 17 U.S.C. § 114, and these rights give artists the exclusive rights to the sound of the song and the song in its written form.[50]

In a post-Napster era of the internet, streaming platforms are “enabling the market to reach new regions of the world, while helping wean[] a generation of music fans away from free or pirated music.”[51]  

III.   Accessibility of Television and Motion Pictures

A.     Licensing

Similar to the music industry, licenses can be obtained from the copyright owner or from an organization in order to show or distribute a film or television show.[52] Distributors of films and television shows include familiar companies such as Warner Bros., Sony, and Lionsgate.[53]

B.     Technology

Technology has also changed the television and film industries. Similarly, to the music industry, consumers now rely more on the internet than physical copies to access visual media.[54]

Netflix, which launched in 1997 and launched its streaming service in 2007, “now owns a 7.8% share of the US screen time,” second to YouTube.[55] Netflix obtains distribution and licensing rights through “Digital Exploitation Agreements.”[56] Through “Digital Exploitation Agreement[s],” Netflix obtains a license from “the producer of the film. . . [for] the right to communicate the film to the public.”[57] In May 2023, Netflix changed its policies to make it more difficult for subscribers to share a singular account across multiple home addresses.[58] This change resulted in increased rates of new subscriptions despite the “substantial risk” that the updated policy posed for Netflix.[59] Netflix’s prominence and popularity within the industry does not come without problems, though. Problems for the future of copyright law and the market for creative works have arisen as competitors for Netflix have appeared in recent years, as streaming platforms have to keep up with one another and with rapidly changing technology.

In 2018, a smaller streaming platform’s attempt to provide consumers with an easier way to access television was not considered fair use and was held to be unlawful by the United States Court of Appeals for the Second Circuit.[60] The smaller streaming platform was distributing content from larger television networks, allowing its subscribers to not only watch ten-minute clips of television shows, but to also “email the clips for viewing by others, including those who are not TVEyes clients.”[61] The specific features of TVEyes platform that led to the lawsuit were the ten-minute clips available to its subscribers, as well as the shorter, fourteen-second clips available when a subscriber searched for a specific term.[62] Ultimately, fair use did not protect TVEyes largely because of the potential that TVEyes would harm the marketability of the news Fox was providing.[63]

In recent litigation involving major streaming platforms, including Netflix, the platforms sued an individual who was the “operator of two illegal streaming sites.”[64] That operator attempted, through two services, to provide consumers with content ordinarily available across several platforms that sometimes require separate subscriptions.[65] The operator’s two services, “AllAccessTV (AATV) and Quality Restreams,” gave consumers the opportunity to purchase subscriptions and to have access to a “live channel feed.”[66] The subscriptions allowed AATV and Quality Restreams subscribers to watch and download “copyrighted movies and TV shows.”[67] That recent case and TVEyes are two examples of the approach of modern copyright law as it relates to the distribution of visual media by entities other than major television networks or streaming platforms: attempts to distribute content for profit that belongs to another streaming platform will be swiftly stricken down, with no protection available from the fair use doctrine. This keeps visual media stuck in a patchwork of paywalls.

IV.   “Television and Film” Modernization Act: Recommended Solution

One possible solution to the problems faced by consumers and potential consumers of visual media would be the passage of the film and television equivalent of Title I of the MMA, establishing a new licensing system for the film and television industries. A new statute is also needed to protect artists regardless of the streaming platform their works end up on or how much the work gets distributed across the internet, and to give consumers more reliable (and legal) access to visual media.

A.     Artist Compensation

One problem shared by music streaming platforms is low pay for the creators of the media supplied by various platforms.[68] Writers, producers, and actors alike have received low royalties from Netflix, even when the television shows they have worked on have become popular.[69] A statute similar to Title I of the MMA could guarantee royalties for writers, producers, and actors, specifically. A “Film and Television” Modernization Act could do this by establishing a “mechanical licensing collective” that, like the MLC established by Title I of the MMA, “collect[s] and distribute[s] royalties, and identif[ies] musical works and their owners for payment.”[70] The MLC established by the MMA also maintains a database listing entities eligible to receive royalties.[71] An analogous statute for the film and television industries should provide for the creation and maintenance of a similar database. This could help ensure that creatives involved with the production of film and television projects earn royalties for their work, no matter where those projects (legally) end up across various streaming platforms.

Without a statute that ensures copyright holders receive compensation for the distribution of their work on streaming platforms, though, the film and television industries may face more strikes in the future, as technology continues to change. As seen in 2023, such strikes are incredibly costly and inherently reduce the content available to consumers because very little new content is being created.[72]

The MMA requires potential licensees to “have a direct contractual, subscription or other economic relationship with listeners or. . . must exercise direct control over providing the service to the listeners; [b]e able to report revenues (or other consideration) generated by the service; and [b]e able to provide certain reporting on usage of sound recordings of musical work.”[73] A similar statute for the film and television industries could mitigate some of the increased costs of fairly compensating writers and actors by requiring that licensees provide content through a paid subscription service, for which the revenues would have to be reported. This could, ideally, pave the way for greater transparency and accountability for the payment of royalties. Additionally, the licensees under such a statute should be required to report their usage of the copyrighted works to which they are given distribution rights, further ensuring that all royalties are accounted for.

B.     Consumer Access and Stability

It can become incredibly difficult for members of the public to access some films and television shows when, due to licensing agreements, they are removed from Netflix after a set amount of time.[74] Unstable consumer access is another reason why Congress should pass a statute similar to the MMA. Blanket licensing, especially one centralized and regulated through a licensing collective established through such a statute, could make it easier to distribute the content in a manner that the removal of it from one streaming platform would not render it nearly impossible to find and engage with. Through a blanket license, a platform such as Netflix would have the ability to distribute greater amounts of content without relying on piecemeal licensing agreements.

A statute similar to Title I of the MMA could inhibit competition between streaming platforms, ideally leading to fewer streaming platforms capable of legally distributing greater amounts of content. These streaming platforms could obtain blanket licenses through a “Film and Television Mechanical Licensing Collective,” which could allow for more streamlined distribution, with regard to both the content itself and the process of requesting a license for the use of such content. The existence of fewer streaming platforms with larger amounts of available content could mark the beginning of a more consumer-friendly streaming world.

C.     Modernization

The passage of the MMA also demonstrates that updating the laws to reflect the needs of creatives and consumers in a rapidly changing world is not an impossible task, even though it may be a difficult one. Although daunting and murky, the realm of copyright law that protects film and television needs to be updated to combat the modern problems facing creatives and consumers alike, such as piracy on social media.

Rampant piracy on TikTok, and other popular social media applications, further highlights the urgency which copyright law must adapt to technological changes. Online piracy can be difficult to regulate, and if existing copyright law cannot control it, it is doubtful that a new statute for film and television would be able to do so either. To leave the film and television industry without greater protection from piracy, though, would allow piracy to continue to spiral out of control. In contrast to the manner in which music streaming platforms have reduced the demand for pirated copies of music,[75] piracy of visual media still poses a great threat to the market for visual media streaming platforms.[76] The screen recording capabilities on various devices allow users of those apps to create copies of the posted movies, meaning that an individual could create copies that exist even after the post in the screen recording has been removed at the request of a copyright holder.[77]

Congress must respond to piracy by ensuring that legal infrastructure is in place to better facilitate licensing for film and television, thereby eliminating the need for consumers to illegally access visual media when content is removed from a given streaming service. Additionally, as with artist compensation, requiring the usage of copyrighted works by licensees to be reported could mitigate some problems caused by piracy by establishing a more centralized method for tracking where certain content has legally ended up across the internet.[78]

V.  Addressing the Complexities of Copyright Law: Potential Weaknesses

To propose a solution to problems within a particular creative field without acknowledging the flaws of that solution would do an incredible disservice to members of that field, the market, and consumers of the art produced by that field. Consequently, there are numerous potential issues that could arise if a kind of “Film and Television Modernization Act” is passed, each of which must be addressed. These potential issues include: monopolization, disparities between artists as a result of the MMA, and weaknesses—exposed by consumer engagement—with the copyrighted works made more easily available to them as a result of the MMA. Despite these concerns, though, there are ways that a “Film and Television” Modernization Act could ease them as the streaming world continues to change.

A.     Problems

It should be acknowledged that there are problems within music copyright law and that adapting music copyright law to other forms of media will not necessarily solve all problems in copyright law. There is a risk that those problems may be transferred to the television and film industry if copyright law is treated as “one size fits all.”

One problem with passing a statute analogous to Title I of the MMA for the film and television industries is that the market for collective licensing is already “a heavily regulated market” regarding music because of the potential for “monopoly pricing…of collective copyright control.”[79] If collective blanket licenses are utilized for visual media, then heavy regulation will also be needed to prevent monopolization, and the process of getting to a point of effective regulation could be fraught with litigation, lasting several years and potentially causing problems for consumers. It is also possible that increased regulation in the film and television industries could exacerbate current consumer access issues by making it even more difficult to access copyrighted works.

The use of virtual private networks (VPNs) may also eliminate the need for such a statute. VPNs allow users to access content available on streaming platforms in other countries, making creative works easily accessible to consumers.[80] VPNs could eliminate the need for an improved blanket licensing system for visual streaming platforms. Downloading a VPN is a much quicker process than waiting for new legislation to facilitate greater consumer access to media. VPNs also give consumers unlimited access, in a sense, to media. A consumer could digitally “follow” a piece of media around if it comes and goes from various platforms and on different versions of those platforms in various countries.[81]

With the merging of several streaming platforms,[82] it is possible that a statute similar to the MMA is not needed to resolve the problem presented by the existence of so many streaming platforms with no overlapping content. Perhaps all one needs to do is wait for this era of streaming to end, and to simply wait for studios to combine their platforms until there are fewer platforms to subscribe to in order to access all the content one wishes to access.

Recent developments in music copyright have put legal flaws on display for consumers, calling into question the ability of a “Film and Television Modernization Act” to successfully facilitate increased consumer access to copyrighted works. As of February 2024, music distributed through United Music Group (UMG) has been removed from the app TikTok, leaving countless videos on the platform without any sound.[83] This ongoing situation is one example of the legal relationship between major music distributors and a social media platform failing and leaving consumers to deal with the fallout. If the MMA could not prevent such an event, then its ability to ensure that artists receive royalties for their work is dubious, as well as its ability to foster the distribution and access of creative works. Such an event begs the question: why have a mechanical licensing collective in place if it cannot stop a mass-deletion of media from a popular platform, and why have such a collective in place for film and television if countless amounts of content could theoretically be wiped from Netflix the day after its establishment?

Some artists were dissatisfied with the MMA not long after its passage. This dissatisfaction led to litigation between Eight Mile Style—the publishing company of the rapper Eminem—and Spotify, which began in August 2019, less than one year after the MMA was signed into law. In that case, the plaintiff went so far as to allege that the MMA is unconstitutional. In Eight Mile Style’s complaint, it argued that the MMA “retroactive[ly] eliminat[ed] . . . the right of a plaintiff to receive profits attributable to infringement, statutory damages, and attorneys’ fees,” amounting to two violations of the Constitution: “denial of due process . . . and an unconstitutional taking of vested property rights.”[84]

B.     Final Discussion

The current state of the film and television industries is piecemeal and fragmented, a choppy legal sea upon which consumers must travel to access protected creative works. Streaming platforms are ever-changing, altering their policies to compete with one another. In the midst of those changes, a statute that regulates licensing of the content on those streaming platforms could offer some stability and consistency for consumers. A statute is also needed to protect the rights of creatives within the film and television industries. Although such a statute might not solve all the problems in the film and television industries, it could serve as a step in a new, more positive direction for the future of film and television. Such a statute could fill the existing gaps in copyright law created by rapidly advancing technology and could mitigate issues that have arisen in the years since streaming became such a central part of the film and television industries.

Conclusion

While there are problems with the manner in which copyright law has been applied to music streaming platforms as well as visual media streaming platforms, aspects of music streaming platforms should be adapted to visual media streaming platforms to better provide consumers access to the greatest amount of art and to ensure that there will continue to be a market for streaming platforms. Changes should be made to allow consumers to access visual media more easily, similar to the manner in which music is easily accessible on the internet. The many creatives of the film and television industries, and the consumers of their content, could be served well by a federal statute with similar provisions as the Music Modernization Act. No one can say with complete certainty what the current trajectory of the streaming world is, but the passage of a “Film and Television” Modernization Act could place copyright law on a path toward a brighter future, one in which the “blank space” currently left by Congress is gone.

* J.D. Expected 2025, University of Kentucky Rosenberg College of Law; BA Political Science 2023, University of Kentucky.

[2] Orrin G. Hatch-Bob Goodlatte Music Modernization Act, Pub. L. No. 115-264 (2018) [hereinafter MMA].

[3] The Creation of the Music Modernization Act, Copyright.gov, https://www.copyright.gov/music-modernization/creation.html?loclr=eamma" (last visited Mar. 4, 2025).

[4] What is Copyright?, Copyright.gov, https://www.copyright.gov/what-is-copyright/#:~:text=What%20is%20copyright%20registration%3F,step%20is%20registering%20the%20work (last visited Mar. 4, 2025).

[5] What Musicians Should Know about Copyright, Copyright.gov, https://www.copyright.gov/engage/musicians/#:~:text=Generally%2C%20to%20use%20the%20sound,set%20by%20the%20licensing%20contract (last visited Mar. 4, 2025).

[6] Id.

[7] U.S. Copyright Office, Circular No. 45, Mar. 2014, at 1, https://www.copyright.gov/circs/circ45.pdf.

[8] Copyright litigation 101, Thomas Reuters (Dec. 16, 2022), https://legal.thomsonreuters.com/blog/copyright-litigation-101/#:~:text=A%20copyright%20owner%20can%20sue,specific%20conditions%20(see%20below).

[9] U.S. Copyright Office, Circular No. 16A, Mar. 2021, at 1, https://www.copyright.gov/circs/m10.pdf.

[10] Copyright Licensing Under the Law, Justia, https://www.justia.com/intellectual-property/copyright/copyright-licensing/ (Oct. 2024).

[11] Michelle Kaminsky, What is a Copyright License?, LegalZoom, https://www.legalzoom.com/articles/what-is-a-copyright-license (Jan. 24, 2025).

[12] Id.

[13] Id.

[14] Id.

[15] Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991).

[16] U.S. Copyright Office Fair Use Index, Copyright.gov, https://www.copyright.gov/fair-use/ (Nov. 2023).

[17] 17 U.S.C. § 107.

[18] U.S. Copyright Office Fair Use Index, supra note 16.

[19] The Music Modernization Act, Copyright.gov, https://copyright.gov/music-modernization/.

[20] 17 U.S.C. § 115; Compulsory license, Black’s Law Dictionary (12 ed. 2024).

[21] Flo & Eddie, Inc. v. Pandora Media, Inc., 851 F.3d 950, 953 (9th Cir. 2017); see also The Creation of the Music Modernization Act, Copyright.gov, https://www.copyright.gov/music-modernization/creation.html?loclr=eamma (last visited Mar. 9, 2025).

[22] The Music Modernization Act, Copyright.gov, https://www.copyright.gov/music-modernization/ (last visited Mar. 9, 2025).

[23] Musical Works Modernization Act, Copyright.gov, https://www.copyright.gov/music-modernization/115/ (last visited Mar. 9, 2025).

[24] What Is a Blanket License?, Songtrust, https://help.songtrust.com/knowledge/what-is-a-blanket-license.

[25] Music Modernization Act (“MMA”) § 102(d)(1)(D).

[26] Digital License Coordinator, The Blanket License – Who Needs It and What You Need to Know, https://digitallicenseecoordinator.org/wp-content/uploads/2020/09/Defining-and-Differentiating-between-a-%E2%80%9CBlanket-Licensee%E2%80%9D-and-a-%E2%80%9CSignificant-NonBlanket-Licensee%E2%80%9D-Resource-Document.pdf; MMA § 102(a)(1).

[27]MMA § 102(a)(1).

[28] Digital License Coordinator, The Blanket License – Who Needs It and What You Need to Know, https://digitallicenseecoordinator.org/wp-content/uploads/2020/09/Defining-and-Differentiating-between-a-%E2%80%9CBlanket-Licensee%E2%80%9D-and-a-%E2%80%9CSignificant-NonBlanket-Licensee%E2%80%9D-Resource-Document.pdf.

[29] U.S. Copyright Office, Frequently Asked Questions, copyright.gov, https://www.copyright.gov/music-modernization/faq.html#:~:text=The%20Music%20Modernization%20Act%20updates,addresses%20distribution%20of%20producer%20royalties.

[30] Id. at 5; Andrew Parks, Defining Pay Sources: CMO vs PRO, SONGTRUST, (last updated Dec. 11, 2023), https://blog.songtrust.com/pay-sources-difference-between-a-pro-and-cmo.

[31] Andrew Parks, Defining Pay Sources: CMO vs PRO, SONGTRUST, (last updated Dec. 11, 2023), https://blog.songtrust.com/pay-sources-difference-between-a-pro-and-cmo.

[32] BMI, What is the difference between performing right royalties, mechanical royalties and sync royalties?, BMI Member FAQs, https://www.bmi.com/faq/entry/what_is_the_difference_between_performing_right_royalties_mechanical_r.

[33] Quinn He, The vast accessibility of modern music streaming, Mass. Daily Collegian, (Dec. 10, 2019), https://dailycollegian.com/2019/12/the-vast-accessibility-of-modern-music-streaming/.

[34] Arista Records LLC v. Lime Group LLC, 715 F.Supp.2d 398, 409 (S.D.N.Y. 2010).

[35] Jonathan Stempel, LimeWire to pay record labels $105 million, ends suit, Reuters, (May 13, 2011), https://www.reuters.com/article/idUSTRE74B783/.

[36] He, supra note 33.

[37] Shubham Singh, Spotify Users Statistics 2025: Subscribers & Demographics Data, demandsage, (Jan. 15, 2025), https://www.demandsage.com/spotify-stats/.

[38] See Tim Ingham, Over 60,000 Tracks Are Now Uploaded To Spotify Every Day. That’s Nearly One Per Second, Music Bus. Worldwide, (Feb. 24, 2021), https://perma.cc/A34C-4TVJ.

[39] He, supra note 33.

[40] Get more out of your music with Premium, Spotify, https://www.spotify.com/us/premium/.

[41] Singh, supra note 35.

[42] Music streaming overtakes physical sales for the first time -industry body, Reuters, (Apr. 24, 2018), https://www.reuters.com/article/music-sales/music-streaming-overtakes-physical-sales-for-the-first-time-industry-body-idUSL8N1S143H.

[43] See Spotify, Royalties, Spotify for Artists, https://support.spotify.com/us/artists/article/royalties/.

[44] Id.

[45] Eric Priest, The Future of Music Copyright Collectives in the Digital Streaming Age, 45 Colum. J.L. & Arts 1, 6 (2021).

[46] Id. at 7.

[47] See id.

[48] Id.

[49] 17 U.S.C. § 106(6).

[50] Moses Singer, Getting in Turn with Copyright Law: Musical Compositions vs. Sound Recordings in Richardson v. Kharbouch, Moses Singer Publ’ns (Mar. 5, 2024), www.mosessinger.com/publications/getting-in-tune-with-copyright-law-musical-compositions-vs-sound-recordings-in-richardson-v-kharbouch.

[51] Reuters, supra note 42.

[52] See, e.g., Media - Public Performance and Streaming Licenses: How to Obtain Rights, Univ. of Wis. Whitewater, https://libguides.uww.edu/c.php?g=548422&p=3762449#:~:text=Feature%20films%20and%20television%20shows,pictures%20from%20many%20major%20studios.https://libguides.uww.edu/c.php?g=548422&p=3762449#:~:text=Feature%20films%20and%20television%20shows,pictures%20from%20many%20major%20studios.

[53] See, e.g., Market Share for Each Distributor 1995-2024, The Numbers, https://www.the-numbers.com/market/distributors.

[54] See Sarah Whitten, The Death of the DVD: Why Sales Dropped More than 86% in 13 Years, CNBC (Nov. 8, 2019), https://www.cnbc.com/2019/11/08/the-death-of-the-dvd-why-sales-dropped-more-than-86percent-in-13-years.html.

[55] Mindy Born, 60 Netflix Statistics & Facts for 2025: Subscribers, Revenue & More, Cloudwards (May 13, 2024), https://www.cloudwards.net/netflix-statistics/.

[56] Riya Gupta, How Does Netflix Obtain the Rights for Streaming Movies, iPleaders (Apr. 26, 2021), https://blog.ipleaders.in/netflix-obtain-rights-streaming-movies/ .

[57] Id.

[58] Aaron Gregg & Eli Tan, Netflix Sign-Ups Double After Crackdown on Account Sharing, Wash. Post (June 9, 2023), https://www.washingtonpost.com/business/2023/06/09/netflix-password-sharing-rules/. 

[59] Id.

[60] Fox News Network, LLC v. TVEyes, Inc., 883 F.3d 169, 173–74 (2d Cir. 2018).

[61] Id. at 175.

[62] Id.

[63] Id. at 179–80.

[64] Winston Cho, Disney, Major Studios Get $30M From Illegal Streaming Sites Amid Piracy Crackdown, Hollywood Rep. (Mar. 27, 2023), https://www.hollywoodreporter.com/business/business-news/disney-major-studios-win-judgment-from-illegal-streaming-sites-1235361828/. 

[65] Id.

[66] Id.

[67] Id.

[68] Nathan Kamal, Netflix Pays Zero Royalties for Its Most Popular Show Ever, Inside the Magic (June 28, 2023), https://insidethemagic.net/2023/06/netflix-squid-game-zero-royalties-nk1/.

[69] Id.

[70] U.S. Copyright Off., supra note 23.

[71] See 37 C.F.R. § 210.31 (2020).

[72] See, e.g., Robert Hum, The Hollywood Actors’ Strike is Over, but the Impact Will Linger for Some Big Companies, CNBC (Nov. 9, 2023), https://www.cnbc.com/2023/11/09/sag-aftra-strike-impact.html#:~:text=CFO%20Gunnar%20Wiedenfels%20said%20on,strong%20films%20and%20games%20performance.%E2%80%9D (discussing the strike’s financial impact on studios and movie theaters).

[73] Digital License Coordinator, supra note 26.

[74] Why Do TV Shows and Movies Leave Netflix?, Netflix, https://help.netflix.com/en/node/60541.

[75] See Reuters, supra note 40.

[76] Brett Danaher, Michael D. Smith & Rahul Telang, Piracy and Copyright Enforcement

Mechanisms, 14 Innovation Pol'y & Econ. 25, 27 (2014).

[77] See How to Screen Record Protected Videos [Completed Guide], iTop, https://recorder.itopvpn.com/blog/how-to-screen-record-protected-videos-1225 (Dec. 23, 2024).

[78] See, e.g., Digital License Coordinator, supra note 24.

[79] Priest, supra note 43, at 2.

[80] What is a VPN?, Microsoft Azure, https://azure.microsoft.com/en-us/resources/cloud-computing-dictionary/what-is-vpn#:~:text=A%20VPN%2C%20which%20stands%20for,and%20firewalls%20on%20the%20internet.

[81] Id.

[82] See, e.g., Ana Faguy, What a Warner Bros./Paramount Merger Could Mean for Users, Forbes (Dec. 21, 2023), https://www.forbes.com/sites/anafaguy/2023/12/21/what-a-warner-brosparamount-merger-could-mean-for-users/?sh=6b9de96c1dbe.

[83] Jem Aswad, TikTok Begins Removing Universal Music Publishing Songs, Expanding Royalty Battle, Variety (Feb. 27, 2024), https://variety.com/2024/music/musicians/tiktok-removing-universal-music-publishing-songs-1235923848/.

[84] Althea Legaspi, Eminem Publisher Sues Spotify for Copyright Infringement, Rolling Stone (Aug. 21, 2019), https://www.rollingstone.com/music/music-news/eminem-publisher-spotify-copyright-infringement-lawsuit-874956/.

The Affordable Care Act’s Employer “Pay or Play” Mandate: A Tax or Regulation?

Download a PDF Version

The Affordable Care Act’s Employer “Pay or Play” Mandate: A Tax or Regulation?

Beckett Cromwell*

Introduction – About the Affordable Care Act

Imagine you are injured in a routine accident, and you have no means of paying for your hospital visit; however, you do not have prescribed medical insurance coverage or saved up cash to pay your medical bills out of pocket. Hopelessness begins to set in as you need medical attention but cannot bear the financial consequences of paying for the treatment yourself. The Patient Protection and Affordable Care Act or simply the “Affordable Care Act” was implemented in two parts as a way to help Americans manage their healthcare insurance coverage in a cheaper and more efficient way.[2] The overall goals of the Affordable Care Act are to, “make affordable health insurance available to more people; expand the Medicaid program to cover all adults with income below 138% of the [federal poverty line]; and support innovative medical care delivery methods designed to lower the costs of health care generally.”[3] These are undoubtedly broad goals that require specific implementation in order to achieve them.

Key features of the Affordable Care Act include an increased access to medical insurance, increased protections for consumer medical coverage holders, emphasized early disease and illness detection and prevention, and lower care costs with improved system performances.[4] The Affordable Care Act widened the availability of consumer insurance coverage in two ways.[5] First, it allowed individual consumers to compare various plans and coverage options that were offered by individual states at the state level and gave a choice as to which coverage plan they wanted based on their health needs or other factors.[6] Second, as mentioned previously, the Act expanded Medicaid coverage to encompass more individuals and families below the poverty line, and as of 2018, in the eight years since the implementation of the Act in 2010, “the number of uninsured people in the country [had] fallen by about 20 million.”[7] The Department of Health and Human Services (HHS) enhanced early disease and illness detection and prevention in early 2022 as a response to the COVID-19 pandemic.[8] This allowed for an estimated 150 million patients to have free-of-charge access to important preventative measures and diagnostic testing such as “vaccinations, contraception, and cancer screening” which is required by the Affordable Care Act.[9] These key features are important mechanisms enabling the Act to achieve its aforementioned broad goals of ensuring more Americans have cost-effective health insurance, precisely what Congress hoped to accomplish when it voted on and passed this healthcare reform legislation. Both premiums paid for health insurance and the number of uninsured Americans have gone down since the passing of the Affordable Care Act, thus making strides towards Congress’ goals of the Act.[10] This may be but a coincidence or a correlation and not caused by the Affordable Care Act but there are some metrics allowing the argument to be made.

Although the Act is arguably successful in achieving what it set out to accomplish, the Affordable Care Act has not been without controversy, and since its enactment, “the public was almost evenly divided between those who supported it and those who opposed it.”[11] Like many legislative bills, partisan issues arose and made the garnering of votes to have the bill pass through Congress a challenge itself, before each side of the aisle could even agree to the terms inside.[12] Upon the initial vote, partisan issues were prevalent as reports of up  to “80 percent of Democrats” supported the Affordable Care Act and around “81 percent of Republicans were strongly negative” toward the bill.[13] As a simple reminder, the Affordable Care Act was passed under a Democrat-controlled Congress under then-President Barack Obama.[14] Simple partisan divide is one reason for the opposition to the bill, but not the only reason.[15] Many people, including Republicans, were not in favor of the Affordable Care Act because of the “individual mandate” with some calling it “by far the most unpopular provision of the law”[16] and “one of U.S. history’s most contested laws.”[17] It required “all Americans to obtain health insurance or pay a tax penalty[.]”[18] Thus, Congress’ goals were bound to be met as Americans were obligated to have health insurance coverage, and by requiring people to have insurance, logically the number of uninsured Americans would go down, so the individual mandate was the driving force of the Act.[19]

I.      The Supreme Court’s Affordable Care Act Stance Background

In 2012, a Supreme Court case, National Federation of Independent Business v. Sebelius (NFIB) issued major guidance as to the individual mandate found in the Affordable Care Act.[20] In this case, the Supreme Court held that the individual mandate was constitutional under Congress’ taxing power, not under the Commerce Clause.[21] This was an unexpected decision because the lower courts that reviewed this case addressed the Commerce Clause argument and not Congress’ taxing power.[22] That still left the issue of whether the exaction was deemed a tax or a penalty.[23] The Court held that “because we have a duty to construe a statute to save it, if fairly possible, § 5000A can be interpreted as a tax.”[24] The Supreme Court used their precedential canon of construction and construed § 5000A as a tax in order to retain its constitutionality.[25] Should they have done this? Yes, it is easier to patch a hole in a leaky roof rather than replace the entire roof, but at some point a complete renovation will need to be undertaken to preserve the integrity of the structure. “As this note later discusses the employer mandate under the Affordable Care Act, it is imperative to think about the above statement as it relates to the consequences of a “tax” determination.

In 2016, Donald Trump, a Republican, won the Presidential election and took control of the White House.[26] As stated earlier, Republicans strongly disfavored the individual mandate found in the Affordable Care Act.[27] Consequently, included in The Tax Cuts and Jobs Act of 2017[28] –spearheaded by Republicans in Congress – was a provision that in all practical effect, nullified the individual mandate.[29] In an explanation of the Tax Cut and Jobs Act, the Joint Committee on Taxation stated the explanation of the provision is to “reduce[] the amount of the individual shared responsibility payment, enacted as part of the Affordable Care Act, to zero.”[30] Thus, in effect, there is no consequence for not abiding. The individual mandate “tax” is still zero dollars as of the completion of this note with no public plan to change any time soon.

Although Congress and the Supreme Court appear to have decided the individual mandate, the employer mandate that is still in effect[31] The employer mandate worked in conjunction with the individual mandate to fulfill Congress’ goals of lower costs of medical care and reducing the number of uninsured Americans.[32] The employer mandate provides that “certain employers (called applicable large employers or ALEs) must either offer health coverage that is “affordable” and that provides “minimum value” to their full-time employees (and offer coverage to the full-time employees’ dependents), or potentially make an employer shared responsibility payment to the IRS[.]”[33] In simple terms, places of employment that have more than fifty full-time employees or full-time equivalent employees are deemed ALEs and are subject to the employer mandate and must offer healthcare coverage to their employees as required by the Affordable Care Act or else they pay an exaction to the IRS.[34] This mandate went into effect in 2015 and requires that if you are an ALE then ninety-five percent of your full-time employees must have been offered healthcare coverage insurance.[35] Once again, this was another way of ensuring the Congressional goals of the Act were to be successful as more Americans would be accounted for when it came to healthcare insurance. Although the employer mandate seemingly infringed less on private citizens’ rights, the same partisan favor and disfavor was prevalent.[36] With regards to the employer mandate, thirty-four percent of Republicans favored it as compared to seventy-eight percent of Democrats.[37]

The penalty that is associated with non-conformance of the employer mandate is up for debate.[38] Even though the language of the statute in § 4980H does not provide the phrase “excise tax” anywhere, let alone “excise,”[39] the section falls under subtitle D which is “miscellaneous excise taxes.” Thus, some people view the employer shared responsibility payment for noncompliance with the mandate as an excise tax instead of a mere penalty.[40] So, like the individual mandate and the discussion in NFIB, there is division as to whether the payment is a “tax” or a “penalty.”[41]

The analysis may seem straightforward, as the U.S. Supreme Court has already decided that the individual shared responsibility payment that attached to the individual mandate was a tax, but it is hard to conclude that a fair comparison can be made between the two mandates because it is not necessarily a one-for-one comparison.[42] Further consideration shall be made upon different variables regarding the employer aspect that were not prevalent in the individual mandate, and there is always the possibility that the Supreme Court rushed to judgment when deciding that the individual mandate penalty was a “tax.” It appears the Supreme Court was trying to save the constitutionality of the Act as its main goal in NFIB, and may have not given enough thought as to whether the payment was a “tax” or if that was merely a means to save the Affordable Care Act from being nullified and rendered unconstitutional.[43]

Further, this note explores the differing rationales from the various circuits that are split in agreement concerning the employer shared responsibility payment as it pertains to the employer mandate as part of the Affordable Care Act. Part I, above, delved into the caselaw history of the individual mandate stemming from the Affordable Care Act in NFIB and the justifications for rendering the mandate to be a “tax,” but also considering possible Supreme Court shortcomings. Part II examines the split created by the Fourth, Fifth, and D.C. Circuits. Part III compares and contrasts the varying circuits decisions while weighing the holdings made by each court and concludes that due to the purpose behind the enactment of the Affordable Care Act, the categorization of the exaction as a tax imposes a punitive damage rather than a proper deterring effect and thus the exaction should be labeled as a penalty and not a tax.

II.    Differing Circuits

Circuit courts are split as to the classification of the employer shared responsibility payment that attaches to the employer mandate under the Affordable Care Act.[44] There are varying different views as it pertains to the characteristic of the employer shared responsibility payment and whether it is a “tax” or not.[45] The Fifth and D.C. Circuits have held the employer shared responsibility payment to be a tax and thus the Anti-Injunction Act[46] strips the court’s jurisdiction from any suit as the suit restrains the collection of a tax if it has not been previously paid.[47] The Fourth Circuit held employer shared responsibility payment to not be a tax because, as the individual mandate is concerned, Congress treats “penalties and liabilities” found in subchapter 68B of the Internal Revenue Code as taxes for the purposes of the Anti-Injunction Act and neither the individual mandate nor the employer mandate was found in subchapter 68B.[48] In sub-part A of this section, the Anti-Injunction Act and its procedural importance to tax liability litigation is considered. Sub-part B looks at the D.C. and Fifth Circuit’s interpretation of the employer mandate of the Affordable Care Act and their concluded agreement that the mandate is indeed a tax. Sup-part C of this section looks at the Fourth Circuit’s determination that the exaction under the employer mandate of the Affordable Care Act is not a tax but is a penalty.

A.     Anti-Injunction Act

Before we begin the analysis between the various Circuits and how their characterization of the employer shared responsibility payment under the Affordable Care Act differs, it should be noted what the Anti-Injunction Act is and its importance to the discussion as it may either be invoked or useless depending on the court’s characterization of the employer shared responsibility payment. The Anti-Injunction Act is designed to allow for the collection of taxes in even the most mitigating of circumstances and provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person.”[49] The rule stems from the rule elucidated in Flora v. United States, which provides that a person who disagrees with the assessment of a tax must first pay the full amount of tax owed and then file an administrative complaint to have the tax recovered as damages in a suit.[50] In short, Congress does not want the revenue they raise from tax collection to be limited by egregious lawsuits.[51] They want to be able to answer questions and decide issues later.

This is important as it pertains to the employer shared responsibility payment that attaches to failed completion of the employer mandate because a court cannot rule on a case before the tax is paid.[52] The key word in that sentence is “tax.” If the payment under the Act is deemed to not be a tax, then the Anti-Injunction Act will never apply as it only applies to suits that “restrain[] the assessment or collection of any tax[.]”[53] In an instance where the Anti-Injunction Act precludes a lawsuit from being brought, courts will not have subject-matter jurisdiction over the case.[54]

For example, if there is a suit brought in the D.C. Circuit by a company that owes an exaction to the Internal Revenue Service for a failure to abide by the employer mandate and another company in the Fourth Circuit that also owes an exaction to the IRS, one would be able to bring suit in the Fourth Circuit while the other would be barred from bringing suit in the Fifth and D.C. Circuits to challenge their exaction owed because of the Anti-Injunction Act.[55] This is why the characterization of tax or penalty is very important as it creates a procedural hurdle for courts and parties to overcome and disallow a court from hearing a suit.[56]

B.     Indeed a Tax – The Congressional Intent Theories

The D.C. Circuit and Fifth Circuit agree that the employer shared responsibility payment is a “tax” and thus the Anti-Injunction Act as described above applies. A lawsuit may not be brought until the tax has been paid to the Internal Revenue Service and an administrative claim for a refund has been filed.[57]

i.       The Fifth Circuit – Hotze v. Burwell

In the Fifth Circuit case, Hotze v. Burwell, Braidwood Management was the employer responsible for paying the employer shared responsibility payment as they met the requisite employment of more than 50 individuals.[58] Stephen Hotze and Braidwood Management sued over both the individual and employer mandate.[59] They argue that the individual and employer mandates violate both the Origination Clause and the Takings Clause of the Constitution.[60] Concerning the employer mandate, the defendants argued that the Anti-Injunction Act barred any action filed by Braidwood as they had yet to pay the assessed tax and file an administrative claim seeking refund first.[61] The defendants argued that the Affordable Care Act is not a revenue raising bill, but a bill to expand healthcare coverage and therefore the Origination Clause does not apply.[62] The district court followed this argument and found that there was proper jurisdiction and dismissed Hotze’s and Braidwood’s claim.[63] On appeal, the Fifth Circuit stated that the district court improperly concluded as to the merits of the Origination Clause argument and should have dismissed for lack of subject-matter jurisdiction.[64] Turning to the employer mandate analysis, the court recognized that “the employer mandate is the ACA provision that imposes a ‘tax’ on certain employers who fail to provide ‘affordable’ health-insurance coverage to their employees.”[65] As mentioned earlier, the Anti-Injunction Act bars any suit “for the purpose of restraining the assessment or collection of any tax[.]”[66] The Court recognizes the purpose behind the Anti-Injunction Act when it cites NFIB and states it “protects the Government's ability to collect a consistent stream of revenue, by barring litigation to enjoin or otherwise obstruct the collection of taxes.”[67]

The parties did not dispute that if the payment under the employer mandate were to be construed as a tax, then it would violate the Anti-Injunction Act and bar suit.[68] Instead, the court addressed whether the payment was a tax. The Anti-Injunction Act would apply if such payment was a tax, ending the need for further analysis.[69] The court recognized that both the Affordable Care Act and Anti-Injunction Act were created by Congress, so it was imperative to look at Congress’s intent when determining what is deemed a tax under the Anti-Injunction Act.[70] The court found that when looking at the language of the statute, Congress referred to the individual mandate as a “penalty” but referred to the employer mandate and many other exactions within the Affordable Care Act as a “tax.”[71] Going further, the court stated that “the employer-mandate exaction functions like a tax—it is collected by the IRS ‘in the same manner’ as a tax, . . . and the funds raised go to the general Treasury.”[72] There are numerous instances where the court highlighted the fact that the employer shared responsibility payment is referred to as a “tax” in the statute; the court showcases three portions of the Affordable Care Act where the payment is referred to as a tax.[73] The court here regurgitated what the Supreme Court said in NFIB stating “textual evidence is the ‘best evidence’ of whether an exaction constitutes a ‘tax’ for the purposes of the [Anti-Injunction Act].”[74] Finally, the court held that “the text of the ACA explicitly indicates that the employer-mandate exaction indeed is a ‘tax[;]’” therefore, the Anti-Injunction Act barred the employer-mandate as a consequence of Braidwood’s failure to pay the tax (the employer mandate) before filing suit.[75]

ii.     The D.C. Circuit – Optimal Wireless v. Internal Revenue Service

As mentioned previously, the D.C. Circuit, in parallel with the Fifth Circuit, held the exaction assessed from the employer mandate was indeed a tax and not a penalty. In Optimal Wireless v. Internal Revenue Service, appellant, Optimal Wireless operated as a company that provided wireless communications services in several states, including, Texas, New Mexico, Oklahoma, and Louisiana.[76] Prior to the D.C. Circuit taking the case, “[t]he district court dismissed Optimal’s suit for lack of jurisdiction[]” and “held that an exaction under § 4980H is a ‘tax’ for purposes of the Anti-Injunction Act, which strips courts of jurisdiction over suits having the ‘purpose of restraining the assessment or collection of any tax.’”[77] The court recognized the potential imposition of the Anti-Injunction Act when it stated, “Optimal plainly seeks to ‘restrain [] the assessment or collection’ of an exaction under § 4980H.”[78] Thus, prompting the court to derive a distinction between a tax or penalty as the case’s jurisdictional bar hinges upon this classification.[79]

The court began its discussion by going through background of the Affordable Care Act, its purpose, and a few nuances of the Act, such as what happens if an employer fails to offer a plan that provides “minimum essential coverage” or if an employee were to “claim[] a premium tax credit or cost-sharing reduction[.]”[80] As the Optimal Wireless court illustrated, there are two ways to violate the employer mandate of the Act and be subject to an exaction in the event that an employer does not provide minimum coverage or does not provide coverage at all.[81] First, liability is imposed on an employer in the form of an exaction “if it ‘fails to offer to its full-time employees (and their dependents) the opportunity to enroll in minimum essential coverage under an eligible employer-sponsored plan . . . for any month.’”[82] Second, liability is imposed on an employer in the form of an exaction “if it does ‘offer [] to its full-time employees (and their dependents) the opportunity to enroll in minimum essential coverage’ but an employee is still certified as having received a premium tax credit or cost-sharing reduction.”[83] The court distinguished the two liability hooks by simplifying them and stating “Section 4980H(a) applies when an employer does not provide minimum essential coverage at all, whereas Section 4980H(b) applies when the employer offers coverage but that coverage fails to qualify as affordable or as providing minimum value.”[84] Through another distinguishing factor, the court explained that “Section 4980H(a)’s exaction amount is a function of the employer’s total number of full-time employees, whereas Section 4980H(b)’s exaction amount is a function of only the number of employees certified as having received a premium tax credit or cost-sharing reduction.”[85] In Optimal Wireless, the court specifically highlighted different ways that a company may be held liable and how the exaction assessed against it may differ whereas the court in Hotze provides more of a generic overview of employer liability.[86]

In Optimal Wireless, the court determined that Optimal Wireless was liable for an exaction under the first hook, Section 4980H(a), as “one or more of Optimal’s employees had been enrolled in a qualified health plan for which a premium tax credit was allowed.”[87] Optimal’s exactions totaled “$395,640 for 2016 and $736,383 for 2017[,]” which is, in this author’s opinion, no small sum, especially when you consider the pay first, ask for a refund second model that the Anti-Injunction Act prescribes.[88] Optimal originally filed suit in federal district court against both the Internal Revenue Service and the Department of Health and Human Services (HHS), arguing that the regulations that should apply require HHS, and not the IRS, “to issue the certification concerning an employee’s receipt of a premium tax credit or cost-sharing reduction, but HHS had not done so.”[89] The government argued dismissal of Optimal Wireless’s case on several grounds, the main one being the Anti-Injunction Act strips the court of jurisdiction to hear the case as the requisite exaction has not been paid yet.[90] The district court granted the government’s motion to dismiss for lack of jurisdiction, holding that the exaction imposed under Section 4980H is a “tax” and that the Anti-Injunction act is applicable.[91]

Optimal Wireless began its argument in the D.C. Circuit by arguing that to even conclude that the exaction that Section 4980H imposes is a “tax” that it “must contain a clear statement” saying so.[92] Their principal basis behind this argument was that there are harsh consequences that are associated with the statute, such as the imposition and requisite full payment of the exaction before a party is allowed to sue for a refund.[93] The court maintained that Optimal Wireless is confused with the statute, as it is really the Anti-Injunction Act that imposes the harsh consequences and not § 4980H of the Affordable Care Act.[94] The court reasoned that the “question of whether another statute is best read to implicate the Anti-Injunction Act’s jurisdictional bar – which here turns on whether Section 4980H imposes a “tax” – is governed by ordinary principle of statutory interpretation, not by any clear-statement rule.”[95] By looking at NFIB, the D.C. Circuit attempted to use the Supreme Court’s “congressional intent” theory where “Congress repeatedly described the exaction for noncompliance with the individual mandate as ‘a “penalty” rather than a tax,” the Anti-Injunction Act’s jurisdictional bar did not apply.”[96] When the D.C. Circuit here applied that same approach to the exaction under the employer mandate, the opposite conclusion was reached.[97] In the instance of the employer mandate, Congress expressly referred to the employer mandate exaction under Section 4980H as a “tax” on four separate occasions, whereas with the individual mandate it was described as a “penalty” and not a tax.[98]

Concerning the four references of “tax” associated with the employer mandate, “three are found in Section 4980H itself.”[99] The court went through the instances that the word is encountered to determine the context behind its use and whether Congress intended for the “tax” phrasing to be applied to the exaction as a whole or if the phrasing was mere surplusage.[100] The first instance pertained to employers offering unaffordable or “inadequate in value” coverage, stating that the “aggregate amount of tax determined under [subsection (b)(1)] ... shall not exceed the product of the applicable payment amount and the number of individuals employed by the employer as full-time employees during such month.”[101] The second instance pertained to deductions and states “[f]or denial of deduction for the tax imposed by this section, see section 275(a)(6).”[102] The last instance found explicitly in Section 4980H refers to the same section as before, but this time the title of the subsection itself its “Tax nondeductible.”[103] Lastly, in the sole reference not found within Section 4980H, another section implored the Secretary of the HHS to create “a separate appeals process for employers who are notified that that ‘may be liable for a tax imposed by section 4980H of Title 26.”[104] The court concluded that “[t]he multiple statutory references to Section 4980H’s exaction as a “tax” thus render it a tax for purposes of the Anti-Injunction Act.”[105] Optimal attempted and failed to provide another justification aside from the Anti-Injunction Act for the usage of the word “tax,” but the court here relied on precedent that states “Congress said what it meant and meant what it said” as a means to upholding the usage of tax as Congress would not mistakenly and inappropriately use this terminology in contravention of their intentions.[106]

Even though Congress used other terms such as “assessable payment” or “penalty” when describing the exaction, those terms do not dissuade the court that “tax” was the true and main meaning of exaction under Section 4980H. A tax is a type of assessable payment and “[i]f Congress had only used the more general term ‘assessable payment’ to describe an exaction under Section 4980H, it might be unclear whether the exaction qualifies as a ‘tax’ for the purposes of the Anti-Injunction Act.”[107] Since “Congress also used the more specific term ‘tax’ to describe the same exaction (and did so repeatedly), it thereby established the applicability of the Anti-Injunction Act.”[108] The court here was equally convinced with the term “penalty” as they were with the term “assessable payment.”[109] The court drew a comparison between “tax” and “penalty” in that both can be used to describe an exaction and just because a tax seeks to influence conduct, like a penalty, that alone is not enough to strip an exaction of its “tax” status.[110] While recognizing that “Congress cannot change whether an exaction is a tax or a penalty for constitutional purposes simply by describing it as one or the other[,]” Congress does have the power to “describe something as a penalty but direct that it nonetheless be treated as a tax for purposes of the Anti-Injunction Act.”[111] A common way that Congress does so is to “expressly label the exaction as a ‘tax,’ as [they] did for the exaction under Section 4980H.”[112]

In its holding, the Court concluded that “[b]ecause Congress repeatedly called the Section 4980H exaction a tax, Optimal’s suit is barred by the Anti-Injunction Act.”[113] The Court here used the same Congressional intent theory elucidated in Hotze to uphold the employer shared responsibility payment as a “tax” with regard to the Anti-Injunction Act.[114] While the Congressional Intent theory rules the day in the Fifth and D.C. Circuits when determining that the exaction is a “tax,” a competing jurisdiction, the Fourth Circuit, uses a different spin on the Congressional intent theory to conclude that the exaction is not a tax. An analysis of that theory will be covered in the next sub-part.

C.     Not a Tax

The Fourth Circuit, in Liberty Univ., Inc. v. Lew, held that the employer mandate under the Affordable Care Act did not constitute a “tax” under the Anti-Injunction Act.[115] Plaintiffs, including Liberty University and other individuals, brought suit challenging both the individual mandate and the employer mandate of the Affordable Care Act.[116] Prior to the case’s current position, the original district court dismissed the lawsuit, and upheld the constitutionality of both the individual and employer mandate of the Affordable Care Act.[117] The Fourth Circuit, on appeal, determined that the Anti-Injunction Act disallowed jurisdiction over Plaintiffs’ claims as they were seeking to contest the exaction without paying it in full first.[118] Consequently, because the Anti-Injunction Act stripped the court of jurisdiction, the Fourth Circuit remanded the case back down to the district court with an instruction to dismiss for lack of jurisdiction.[119] The Supreme Court granted certiorari, vacated the Fourth Circuit’s judgment, and remanded the case to further consider the implications of a the newly-decided NFIB case covering some of the same issues.[120]

The court began discussion of the employer mandate by defining various terms, determining when exactions must be paid, and how much the exaction is, among other things.[121] As mentioned in the above discussion of other circuit’s cases, and helpful to reiterate when drawing comparisons, this court determined that an employer mandate is required when an “applicable large employer” – which is an employer with “an average at least fifty full-time employees during the preceding year[]” – does not provide “affordable health care coverage to its full-time employees and their dependents[.]”[122] If at least one of the employers’ full-time employees is eligible for “an applicable premium tax credit or cost-sharing reduction” in an effort to alleviate the costs of the medical coverage, the employer is then required to make the exaction or “assessable payment.”[123] An employee becomes “eligible for an ‘applicable premium tax credit’ or ‘cost-sharing reduction’ if the employer fails to offer the employee ‘affordable’ coverage providing ‘minimum value’ and the employee’s income falls between 100% and 400% of the poverty line.”[124] The court then discussed how the exaction is calculated under various scenarios, but that is not necessarily germane to our discussion.[125] It is important to note, however, that the court recognized that pertaining to the employer mandate, “the Secretary of the Treasury has the authority to assess and collect the exaction in the same manner as a tax[,]” which was important to highlight since the individual mandate was deemed a “tax” in NFIB and the statute prescribes identical collection treatment to the employer mandate at issue.[126] The court here, highlighted the two liability hooks found in Section 4980H in (a) and (b) and states that “[i]n effect, then, § 4980H(a) imposes an assessable payment on an applicable employer who fails to offer coverage to its full-time employees and their dependents, while § 4980H(b) imposes an assessable payment on an applicable employer who provides coverage that does not satisfy the mandate’s affordability criteria.”[127]

Liberty University “employs approximately 3900 full-time faculty and staff[]” and is self-insured whole offering various insurance policies, savings accounts, and other reimbursement options to employees for their health care.[128] Liberty contended that depending on the definition of “minimum essential coverage” among other items, the University’s coverage may be deemed to be insufficient or unaffordable and thus cause them to be subject to payment of an exaction under the employer mandate of the ACA.[129] Even though one of the goals of the Act was to lower the costs of health care coverage for Americans, Liberty also asserts that “the employer mandate will ‘increase the cost of care . . . [and] will directly and negatively affect [the University] by increasing the cost of providing health insurance coverage[.]”[130] Finally, as a policy consideration, Liberty is a Christian institution that has certain moral beliefs, including the pro-life belief and that by helping fund abortions through paying an exaction, it is adverse to their religious grounding.[131] Bypassing the other issues, the Court here, on remand, “must decide whether the Anti-Injunction Act bars this pre-enforcement challenge to the employer mandate[.]”[132]

What Liberty contested regarding the employer mandate here “is a pre-enforcement suit to enjoin the collection of an exaction that is codified in the Internal Revenue Code, and which the Secretary of the Treasury is empowered to collect in the same manner as a tax.”[133] The court here recognized from NFIB that application of the Anti-Injunction Act is in effect “only where Congress intends it to[,]” which is the same argument that the Fifth and D.C. Circuits made when looking at Congressional intent.[134] The Secretary of the Treasury uses two instances found in the Affordable Care Act referencing the exaction stemming from the employer mandate as a “tax” to bolster their position that the Anti-Injunction Act bars a challenge to the employer mandate without first paying the exaction in full then seeking a refund.[135] When refuting this observation by the Secretary, the court attempted to contradict him by highlighting that “the Secretary virtually ignores the fact that the Act does not consistently characterize the exaction as a tax[,]” but instead used the term “assessable payment” from time-to-time, including the first instance the exaction was mentioned.[136] Regarding the two instances found in the Affordable Care Act that reference the exaction from the employer mandate as a “tax,” one of them is in a “tax-specific context” and the court maintained that the use of another word besides “tax” would lead to interpretive confusion.[137] The first provision provides “[f]or denial of deduction for the tax imposed by this section . . .” and the second provision provides that “[n]o deduction shall be allowed for the following taxes[.]”[138] The court attempted to illustrate that through its cross-referencing sections of the code, Congress intended to be crystal clear that the exaction is a “tax” which is requisite for deductibility.[139] The court was less confident about an obvious justification for the second instance of the word “tax” being used in the Act.[140] The court did not place much weight on the inability to provide a concrete justification for this other instance of “tax” being used.[141] Instead, they realized that one instance of a lack of explanation is okay “[b]ecause Congress initially and primarily [referred] to the exaction as an ‘assessable payment’ and not a ‘tax,’ the statutory text suggests that Congress did not intend the exaction to be treated as a tax” under the analysis of the Anti-Injunction Act.[142]

While concluding the discussion, the court recognized that “Congress did not otherwise indicate that the employer mandate exaction qualifies as a tax for [Anti-Injunction Act] purposes, though of course it could have done so.”[143] The court here made it a point to highlight that the Supreme Court in NFIB noted that “26 U.S.C. § 6671(a) provides that the ‘penalties and liabilities’ found in subchapter 68B of the Internal Revenue Code are ‘treated as taxes’ for purposes of the [Anti-Injunction Act].”[144] The court stated that “[t]he employer mandate, like the individual mandate, is not included in subchapter 68B, and no other provision indicates that we are to treat its ‘assessable payment’ as a tax.”[145]

Overall, the court in Liberty University thinks that “to adopt the Secretary’s position would lead to an anomalous result[]” because “the Supreme Court has expressly held that a person subject to the individual mandate can bring a pre-enforcement suit challenging that provision[,] [b]ut, under the Secretary’s theory, an employer subject to the employer mandate could bring only a post-enforcement suit challenging that provision.”[146] The court found it hard to believe that Congress, in just two isolated uses of the word “tax,” would have vastly different treatments of the mandates in terms of the Anti-Injunction Act’s applicability.[147] In layman’s terms, the court here believed that when Congress acts, it acts purposefully, and here they did not refer to the exaction as a tax initially, and they did not include it as a “tax” in subchapter 68B of the Internal Revenue Code. If Congress intended to have the exaction under the employer mandate be a tax, then they would have made it clear. The court, in few words, decided the “tax” versus “penalty” issue by stating “the employer mandate exaction, like the individual mandate exaction, does not constitute a tax for the purposes of the [Anti-Injunction Act]. Therefore, the [Anti-Injunction Act] does not bar this suit.”[148]

Conclusion – Not a Tax

With the circuit courts being split in multiple directions, the question arises – which interpretation is correct? The answer to this question carries great importance as a Plaintiff’s rights can vary depending on their geographic location. The procedural and jurisdictional limitations that the Anti-Injunction Act places on the employer mandate are varied throughout circuits and need to be addressed.

As mentioned previously, precedent states “Congress said what it meant and meant what it said[,]” so it is imperative to examine their actions under a proverbial “microscope” when parsing a statute.[149] When examining the Fourth Circuit’s spin on the Congressional intent theory versus the Fifth and D.C. Circuit’s version of the Congressional intent theory, the notion that the exaction under the employer mandate is not a “tax” becomes clear.

Refer earlier to the introduction when the note discussed the overarching goal of the Affordable Care Act was to provide more affordable health care coverage to more Americans. A punishment would deter a company from doing something in the future whereas taxes are more routine in nature. To align with the goals of the Affordable Care Act, the exaction to be labeled as a “penalty” makes the most sense. This is a regulatory punishment to ensure more Americans are properly accounted for in terms of health care. There was never a revenue raising aspect of the employer mandate that typically accompanies a tax.

Further, of the interpretations, the one that makes the most sense with Congressional intent is the “penalty” classification. If Congress wanted to ensure that the employer mandate was a “tax,” then they could have and would have done so. It would have been easier for Congress to have expressly said that the exaction was a “tax” for purposes of the Anti-Injunction Act as only where they intended the Anti-Injunction Act to apply is where it applies.[150] With all the time that goes into writing, lobbying, and amending a bill, Congress would have wanted to ensure that they were sending out a complete product that was not contradictory. Congress would not want to have two separate instances of the word “tax” being used that have vastly different consequences in terms of the Anti-Injunction Act.

For that reason, the proper interpretation when considering Congressional intent, the goals of the Affordable Care Act, and the language of the statute is that the employer mandate exaction is a “penalty” and not a “tax.” 

* J.D Expected 2025, University of Kentucky J. Rosenberg College of Law; BS Accounting & Finance 2021, University of Kentucky.

[2] What is the Affordable Care Act?, U.S. Dep’t Health & Hum. Servs., https://www.hhs.gov/answers/health-insurance-reform/what-is-the-affordable-care-act/index.html] (last updated Apr. 20, 2023) [permalink unavailable]; See also John Han, Why and How the Affordable Care Act Was Passed, Review (May 9, 2018), https://virginiapolitics.org/online/2018/5/9/why-and-how-the-affordable-care-act-was-passed [https://perma.cc/6CQG-UVSB].

[3] About the Affordable Care Act, U.S. Dep’t of Health & Hum. Servs., https://www.hhs.gov/healthcare/about-the-aca/index.html (last updated Mar. 17, 2022) [permalink unavailable].

[4] Will Kenton, Affordable Care Act (ACA): What It Is, Key Features, and Updates, Investopedia (last updated Sept. 23, 2022), https://www.investopedia.com/terms/a/affordable-care-act.asp [https://perma.cc/9N7N-FZZQ].

[5] Adrianna McIntyre & Zirui Song, The US Affordable Care Act: Reflections and Directions at the Close of a Decade, PLOS Med. (Feb. 26, 2019), https://journals.plos.org/plosmedicine/article/file?id=10.1371/journal.pmed.1002752&type=printable [https://perma.cc/3RPG-72ZF].

[6] Id.

[7] Id.

[8] HRSA Updates the Affordable Care Act Preventive Health Care Guidelines to Improve Care for Women and Children, U.S. Dep’t of Health & Hum. Servs. (Jan. 11, 2022), https://www.hhs.gov/about/news/2022/01/11/hrsa-updates-affordable-care-act-preventive-health-care-guidelines-improve-care-women-children.html [permalink unavailable].

[9] Id.

[10] Mike Patton, Obamacare 10 Years Later: Success or Failure?, Forbes (Nov. 11, 2020, 4:59 PM), https://www.forbes.com/sites/mikepatton/2020/11/11/obamacare-10-years-later-success-or-failure/?sh=3e7154c24844 [https://perma.cc/7NRD-6ZVD].

[11] Julie Rovner, Why Do So Many People Hate Obamacare So Much?, NPR (Dec. 13, 2017, 11:48 AM), https://www.npr.org/sections/health-shots/2017/12/13/570479181/why-do-so-many-people-hate-obamacare-so-much [https://perma.cc/M8UL-U53H].

[12] See, e.g., Susan Milligan, How Partisan Politics Threatened Even Must-Pass Legislation in Congress, U.S. News & World Rep. (Oct. 1, 2021, 6:00 AM), https://www.usnews.com/news/the-report/articles/2021-10-01/how-partisan-politics-threatened-even-must-pass-legislation-in-congress [permalink unavailable] (highlighting the Build Back Better bill from 2021 as an example showing how the contents of the bill provide for necessary infrastructure improvements that all Americans enjoy the benefits of and need, but Congress cannot come to an agreement due to political strife).

[13] Rovner, supra note 11.

[14] 111th United States Congress, Ballotpedia https://ballotpedia.org/111th_United_States_Congress [https://perma.cc/KZK7-BG7M] (showing the breakdown of Congress at the time that the Affordable Care Act or “Obamacare” was passed. The Democratic Party had control over the House, Senate, and Presidency at the same time, the first occurrence for them since the 103rd Congress in 1993. This was a major boost to gathering support for getting the bill passed and possibly a reasonable irritant for the objectives of dissenting Republicans).

[15] Rovner, supra note 11.

[16] Id.

[17] John E. McDonough, The Tortured Saga of America’s Least-Loved Policy Idea, Politico (May 22, 2021), https://www.politico.com/news/magazine/2021/05/22/health-care-individual-mandate-policy-conservative-idea-history-489956 [permalink unavailable].

[18] Matthew Fiedler, The ACA’s Individual Mandate In Retrospect: What Did It Do And Where Do We Go From Here?, 39 Health Affs. 429, 429 (2020).

[19] See id.

[20] Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 561–74 (2012).

[21] Id. at 575.

[22] Erika K. Lunder & Jennifer Staman, NFIB v. Sebelius: Constitutionality of the Individual Mandate, Cong. Rsch. Serv. (Sept. 3, 2012), https://www.crsreports.congress.gov/product/pdf/R/R42698/3 [permalink unavailable].

[23] NFIB, 567 U.S. at 562–63.

[24] Id. at 574 (emphasis added).

[25] Id. at 575.

[26] 2016 Presidential Election Results, N.Y. Times (Aug. 9, 2017, 9:00 AM), https://www.nytimes.com/elections/2016/results/president [https://perma.cc/A8C6-7JE7].

[27] Rovner, supra note 11.

[28] Tax Cut and Jobs Act of 2017, Pub. L. No. 115-97.

[29] General Explanation of Pub. L. No. 115-97 at 91, https://efaidnbmnnnibpcajpcglclefindmkaj/https://www.govinfo.gov/content/pkg/CPRT-115JPRT33137/pdf/CPRT-115JPRT33137.pdf [permalink unavailable].

[30] Id. at 92.

[31] 26 U.S.C. § 4980H.

[32] About the Affordable Care Act, supra note 3.

[33] Questions and Answers on Employer Shared Responsibility Provisions Under the Affordable Care Act, Internal Revenue Serv., https://www.irs.gov/affordable-care-act/employers/questions-and-answers-on-employer-shared-responsibility-provisions-under-the-affordable-care-act (last accessed Oct. 26, 2024) [https://perma.cc/745Z-M4UX].

[34] Id.

[35] Nanci N. Rogers & Joe Keavy, Treasury and IRS Issue Final Employer Mandate Rules for the Affordable Care Act, Robbins Schwartz (Feb. 13, 2014), https://www.rsnlt.com/news/law-alerts/2014/02/13/treasury-and-irs-issue-final-employer-mandate-rules-for-the-affordable-care-act/ [https://perma.cc/5DY6-X7JV].

[36] Rakesh Singh & Chris Lee, Majority Favors the Affordable Care Act’s Employer Mandate, But Opinion Can Shift When Presented With Pros and Cons, KFF (Dec. 18, 2014), https://www.kff.org/health-reform/press-release/majority-favors-the-affordable-care-acts-employer-mandate-but-opinion-can-shift-when-presented-with-pros-and-cons/ [https://perma.cc/XF2B-8GSX].

[37] Id.

[38] Compare Hotze v. Burwell, 784 F.3d 984, 996–99 (5th Cir. 2015) (holding that the employer shared responsibility payment under § 4980H to be a tax) with Liberty Univ., Inc. v. Lew, 733 F.3d 72, 88–89 (4th Cir. 2013) (holding the employer shared responsibility payment under § 4980H to not be a tax).

[39] See 26 U.S.C. § 4980H.

[40] Erik P. Doerring, Section 4980H Employer Shared Responsibility Payments (ESRP): The New “IRS Employment Tax Penalty”?, Burr & Forman LLP (Apr. 15, 2019), https://www.burr.com/tax-law-insights/section-4980h-employer-shared-responsibility-payments-esrp-the-new-irs-employment-tax-penalty [https://perma.cc/N3JW-HGKN].

[41] Compare Hotze, 784 F.3d at 996–99 (holding that the employer shared responsibility payment under § 4980H to be a tax) with Liberty Univ., 733 F.3d at 88–89 (holding the employer shared responsibility payment under § 4980H to not be a tax).

[42] Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 574 (2012).

[43] Id. at 575.

[44] See Liberty Univ., 733 F.3d at 88–89; Hotze, 784 F.3d at 996–99; Korte v. Sebelius, 735 F.3d 654, 669–70 (7th Cir. 2013); Optimal Wireless v. Internal Revenue Serv., 77 F.4th 1069, 1076 (D.C. Cir. 2023).

[45] Compare Optimal Wireless, 77 F.4th at 1076 and Hotze, 784 F.3d at 996–99 with Liberty Univ., 733 F.3d at 88–89 and Korte, 735 F.3d at 669–70.

[46] 26 U.S.C. § 7421.

[47] Optimal Wireless, 77 F.4th at 1076; Hotze, 784 F.3d at 996–99.

[48] Liberty, 733 F.3d at 88–89.

[49] 26 U.S.C. § 7421(a).

[50] Flora v. United States, 362 U.S. 145, 159–60 (1960).

[51] See 26 U.S.C. § 7421(a).

[52] Id.

[53] Id. (emphasis added).

[54] Dye v. United States, 516 F. Supp. 2d 61, 73 (D.D.C. 2007).

[55] Compare Liberty Univ., 733 F.3d at 87-89 with Optimal Wireless, 77 F.4th at 1076–77 (The effect of the Anti-Injunction Act allowed the plaintiff in Liberty University to bring a claim in the Fourth Circuit that the plaintiff from Optimal Wireless was barred from bringing in the Fifth and D.C. Circuits).

[56] See Optimal Wireless, 77 F.4th at 1076–77.

[57] Optimal Wireless, 77 F.4th at 1073, 1077; Hotze v. Burwell, 784 F.3d 984, 997, 999 (5th Cir. 2015); Comm’r v. Lundy, 516 U.S. 235, 240 (1996).

[58] Hotze, 784 F.3d at 989.

[59] Id.

[60] Id.

[61] Id. at 990.

[62] Id.

[63] Id.

[64] Id. at 991.

[65] Id. at 996.

[66] 26 U.S.C. § 7421(a).

[67] Hotze, 784 F.3d at 996 (citing Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 543 (2012)).

[68] Hotze, 784 F.3d at 996.

[69] Id.

[70] Id. at 997.

[71] Id.

[72] Hotze, 784 F.3d at 997 (citing 26 U.S.C. § 4980H(d)(1)).

[73] Hotze, 784 F.3d at 997.

[74] Hotze, 784 F.3d at 997 (citing NFIB, 567 U.S. at 544).

[75] Id. at 997, 999; 26 U.S.C. 7421(a); Comm’r of Internal Revenue Serv. v. Lundy, 516 U.S. 235, 240 (1996).

[76] Optimal Wireless v. Internal Revenue Serv., 77 F.4th 1069, 1072 (D.C. Cir. 2023).

[77] Id. at 1070–71.

[78] Id. at 1073 (citing 26 U.S.C. § 7421(a)).

[79] Id.

[80] Id. at 1071.

[81] Id.

[82] Id. (citing 26 U.S.C. § 4980H(a)(1)).

[83] Id. at 1071–72 (citing § 4980H(b)).

[84] Id. at 1072.

[85] Id.

[86] Compare Optimal Wireless, 77 F.4th at 1071–72, with Hotze v. Burwell, 784 F.3d 984, 988 (5th Cir. 2015).

[87] Optimal Wireless, 77 F.4th at 1072.

[88] Id.

[89] Id. (citing 42 U.S.C. § 18081(e)(4)(B)(iii); 45 C.F.R. § 155.310(h)).

[90] Id.

[91] Id.

[92] Id. at 1073.

[93] Id.

[94] Id. at 1073–74.

[95] Id.

[96] Id. at 1073–74.

[97] Id. at 1074.

[98] Id.

[99] Id.

[100] See id.

[101] Id. (citing 26 U.S.C. § 4980H(b)(2)).

[102] Id. (citing 26 U.S.C. § 4980H(c)(7) (emphasis added)).

[103] Id. (citing 26 U.S.C. § 4980H(c)(7) (emphasis added)).

[104] Id. (citing 42 U.S.C. § 18081(f)(2)(A) (emphasis added)).

[105] Id.

[106] Id.

[107] Id. at 1075.

[108] Id.

[109] Id.

[110] Id.

[111] Id. at 1076 (quoting Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 544 (2012)).

[112] Id. (citing CIC Servs., LLC v. Internal Revenue Serv., 593 U.S. 209, 212–13 (2021)).

[113] Id.

[114] Id. at 1074; Hotze v. Burwell, 784 F.3d 984, 999 (5th Cir. 2015).

[115] Liberty Univ., Inc. v. Lew, 733 F.3d 72, 89 (4th Cir. 2013).

[116] Id. at 83.

[117] Id.

[118] Id.

[119] Id. (citing Liberty Univ., Inc. v. Geithner, 671 F.3d 391 (4th Cir. 2011)).

[120] Id. (citing Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012)).

[121] Id. at 84–85.

[122] Id. at 84.

[123] Id.

[124] Id. at 84–85.

[125] Id. at 85.

[126] Id.

[127] Id.

[128] Id. at 86.

[129] Id.

[130] Id.

[131] Id.

[132] Id. at 87.

[133] Id.

[134] Id.

[135] Id. at 88.

[136] Id.

[137] Id.

[138] Id.

[139] Id.

[140] Id.

[141] Id.

[142] Id.

[143] Id.

[144] Id. (citing Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 543 (2012)).

[145] Id.

[146] Id.

[147] Id.

[148] Id. at 89. (emphasis added).

[149] Optimal Wireless v. Internal Revenue Serv., 77 F.4th 1069, 1074 (D.C. Cir. 2023).

[150] Liberty Univ., Inc. v. Lew, 733 F.3d 72, 87 (4th Cir. 2013).

Habitual Offender Statutes: A Need for Change

Download a PDF Version

Habitual Offender Statutes: A Need for Change

Jacob Bush[*]

Introduction

Many states have habitual offender statutes, which label those who violate the statutes as either habitual felony offenders or persistent felony offenders (hereinafter referred to as HFO).[2] While these statutes differ state-by-state, they all serve as a deterrent to those who may recommit felonies. In addition to longer sentences, many of those convicted under a HFO statute are also restricted in their eligibility for the different types of probation.[3]

While it may seem fair to punish those who are reoffenders harsher than first time-offenders, HFO statutes have a detrimental effect to our society. First, these kinds of statutes can be used by prosecutors in a way that interferes with traditional notions of fairness. Second, the punishment for those who have committed the lowest level of felonies, such as drug possession or petty theft can be sentenced similarly to felons convicted of violent crimes.[4] Finally, the public suffers financially from how they are currently used.[5] The solution to these issues requires two changes. First, to ensure fairness is preserved, the procedures that apply to HFO statutes should be similar to the procedures for capital punishment defendants. Second, HFO statutes should be revised to exclude low-level felonies.[6]

This Article can be broken down into five parts. Part I introduces the reader to the article and provides a broad view of the arguments to be made. Part II contains four subparts that discuss arbitrary use of persistent felony offender statutes. Part III involves amending HFO statutes. Part IV provides a short section of some of the changes being made or attempting to be made to remedy the problems with HFO statutes. Part V concludes the article by recognizing and refuting a potential counterargument and summarizing the content of this article.

 I.     Arbitrary Use of the Persistent Felony Offender Statute

To uphold the fairness our judicial system claims to promote, policies need to be applied to everyone equally. HFO statutes, however, are not applied equally to African Americans.[7] Four subparts will provide readers with sufficient evidence to support this. Subpart one introduces the reader to how prosecutorial discretion affects HFOs. Subpart two highlights how minorities are more often convicted of being a HFO than white people. The third and fourth subpart offers a solution to this issue.

A.    Prosecutorial Discretion

Prosecutorial discretion comes from the common law principle that the government has “broad discretion” on who to prosecute.[8] The purpose of this discretion is to provide for a more efficient way to prosecute crimes while staying in line with the public interest.[9] Broad discretion also extends to whether a defendant will face a HFO charge. An example of this can be seen in Bordenkircher v. Hayes.[10] This case involves the denial of a HFO’s habeas corpus claim.[11] The Supreme Court held that the prosecutor seeking a HFO charge, after the defendant denied a plea deal from the prosecution, was not a violation of due process because of the prosecutor’s broad discretion.[12] A palatable solution would be for states to adopt procedures that will ensure a fair sentencing process for defendants. Adopting these new procedures would take away the ability for prosecutors to use these statutes to impose a heftier sentence on a person solely because of a prosecutor’s personal biases.

Making changes to a specific kind of prosecution is not a foreign concept. In cases before the U.S. Supreme Court, counsel appearing on behalf of death penalty petitioners have urged that such cases are inherently “different.”.[13] With the steep sentences sometimes being imposed lower-level felons, HFO statutes should fall under this “different” category as well. The additional protections added for capital cases are very expensive and in some circumstances cost four times the amount of a non-death penalty case.[14]

Due to the large number of defendants facing a HFO charge, it would be unreasonable to expect all of the additional protections to apply to HFOs.[15] Applying all protections would create an overwhelming financial strain on the criminal justice system.[16] Instead, states should adopt select policies from the capital punishment procedures that would lower the amount of people being charged as a HFO. Specifically, instead of a prosecutor deciding if HFO status will apply to a defendant, that should be left up to an unbiased jury. Additionally, defense counsel should be required to do mitigation investigation and should be allowed to offer mitigating evidence to the jury.[17]

B.     Racial Disparity Among Habitual Offenders’ Sentencings

Many states leave it to the prosecutor to decide who will be charged as a HFO, which can create an environment where personal bias or prejudice can influence the sentence of the defendant.[18] One of the biggest areas for potential prejudice is race.[19] Several studies have looked at the disparities between race and when HFO statutes are applied. These studies have used data to show that in areas where there is increased “racial threat,” African Americans are more likely to be sentenced under the HFO statute compared to their similarly charged white counterparts.[20] The term racial threat refers to those in power feeling threatened by minorities.[21] Combining this fear with stereotypes about crime often leads to minorities receiving harsher sentences.[22] The disparity between race and HFOs are not exclusive to one state either.

In Mississippi, seventy-five percent of HFOs are African American.[23] While this statistic could be the consequence of a higher African American population in the general public of these states and in prison, the race disparity regarding HFOs is worse than the disparity of being incarcerated within the state of Mississippi.[24] African Americans make up fifty-eight percent of Mississippi’s prison population and comprise less than forty percent of the state’s population as a whole.[25] Maryland is another example of racial disparity among HFOs outside of the south.[26] In Maryland, seventy-five percent of people sentenced to life in prison under the HFO statute are also African American.[27] This is not an argument that prosecutors are inherently racist, but statistics show that there is a large disparity between which races are sentenced under the HFO statutes.[28] Because of this disparity, extra safeguards are needed to make sure that the justice system is fair and absent of personal bias.

C.     Taking the Decision Away from the Prosecutor

Allowing the jury to decide whether a person should be considered a HFO would provide an avenue less likely corrupted by prejudice. In Apprendi v. New Jersey, the Supreme Court looked at a statute that would allow a defendant to be convicted of a second-degree offense by a jury but then have a sentence imposed on them as if it was a first-degree offense.[29] New Jersey allowed the sentence to be enhanced because it was considered a hate crime on top of the original offense committed.[30] The Supreme Court decided that other than a prior conviction, anything that could increase the penalty for a crime beyond the possible maximum penalty for the statute had to be submitted to the jury and proved beyond a reasonable doubt.[31] While this rule eventually was applied to capital sentencing and provided substantial protections to defendants facing the death penalty, the court expressly excluded prior offenses from the holding.[32] Doing so sets the stage for HFO statutes to continue to be used to sentence defendants to extreme sentences compared to what it would be without HFO status.

In 2002, the Supreme Court reinforced the belief that a defendant has the right to a jury determination that he or she is not only guilty of the crime but that the aggravating circumstances exist as well.[33] In Ring v. Arizona, the Court looked back to Apprendi and relied on the same logic in coming to the conclusion in the current case.[34] Summing up this connection, Justice Ginsburg makes a comparison between the two cases stating, “[t]he right to trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it encompassed the factfinding necessary to increase a defendant’s sentence by two years, but not the factfinding necessary to put him to death.”[35] This quote from Justice Ginsburg highlights the core problem with those facing HFO sentencing. If someone who is facing an enhancer of two years is required to have that determined by the jury, why are those facing up to life enhancements not offered the same opportunity?

Recently, in 2016, the Court took a step further than Ring, in Hurst v. Florida.[36] In Hurst, the Court determined that a recommendation of death is not enough; it must be a determination made by the jury.[37] Many HFO statutes do technically leave this decision to the jury, but they have very little actual say in the sentence.[38] For the statute to activate, the jury just has to decide whether or not the defendant has prior applicable offenses. Once that is established, HFO status applies. For a more just outcome, the jury should be able to consider factors like those in death penalty cases that can provide context for a possible lighter sentence. Look at the case of Fair Wayne Bryant.[39] Bryant, a Louisiana man, was sentenced to life in prison for stealing a pair of hedge clippers.[40] Stealing hedge clippers on its own does not lead to a life sentence, but Louisiana’s HFO statute was used in this case due to Bryant’s four prior felonies.[41] Had Apprendi applied to prior convictions, Bryant may have received the same sentence, but it would have been up to the discretion and determinations of the jury and not a statute that automatically applied regardless of the crime.[42] This is not an isolated occurrence. Charles Collins is another person who was sentenced to life without the possibility of parole in 2010 for drug charges. [43] Again, his life sentence came from the HFO statute in Illinois, tying the hands of the judge who had no choice but to impose that sentence.[44] Illinois Governor, JB Pritzker commuted Collins’s sentence to allow life with the possibility of parole.[45] Fortunately, Bryant was paroled in 2020[46] and Collins in 2023,[47] but many non-violent HFOs have not received the same fate. A 2005 study in California showed that out of those sentenced under the state’s HFO statute, a little over half of those inmates were convicted of nonviolent offenses.[48] In some circumstances, the judge or jury lacks the authority to decide whether someone is considered a HFO.[49] In some states, once the prosecutor convicts on the original-charged felony, they then only have to prove the defendant has prior felony convictions within the statutory time frame.[50] Look back to Collins’s case, where the judge made the comment that there was nothing she could do in regards to the sentence.[51] A blanket approach to stopping repeat offenders has created a risk of non-violent offenders slipping through the cracks and being lumped in with violent offenders.

D.    The Need for Mitigating Evidence

Capital punishment has been a controversial topic for decades, which has led to ample case law that has provided protections for defendants facing the death penalty.[52] One protection is requiring defense counsel to do investigation into mitigating evidence.[53] Even more important, however, is requiring the jury to consider that mitigating evidence before imposing the sentence.

Before a jury can be required to hear and consider mitigating factors of a potential HFO, the defendant’s attorney must produce it. In the realm of capital punishment, this is a requirement. In Wiggins v. Smtih, Wiggins sought relief after his ineffective assistance of counsel claim was denied by the United States Court of Appeals.[54] In his original case, Wiggins was convicted of murder and sentenced to death.[55] Partially to blame for the sentence, is his defense team not providing mitigating evidence on Wiggins’s behalf.[56] On appeal, the Supreme Court analyzed Wiggin’s mitigating evidence, which included several instances of severe trauma.[57] It then concluded that a competent attorney would have introduced the mitigation evidence at trial, and that it would be relevant to the defendant’s mitigation argument..[58] They reason this is because society believes that defendants with a traumatic background are held to be less culpable those who do not.[59] Not only does this show that the Supreme Court recognizes how important it is to humanize people before a sentence is imposed on them, but that society believes that those with difficult life history are less culpable.[60] Establishing this procedural rule is necessary to implement the next point.

Mitigating evidence must be considered by the jury before imposing a sentence upon a defendant in a death penalty case. In Lockett v. Ohio, the defendant was convicted of murder and under the Ohio statute, the sentencer, did not consider certain mitigating evidence.[61] The Supreme Court analyzed this and recognized that, the lack of a requirement for mitigating evidence to be considered is attributable to a public policy decision, enacted through statute..[62] Even so, they recognized that treating defendants with “respect and uniqueness” is much more important in capital cases as there are not as many remedies for those defendants and because of the severity of the punishment.[63] The Court then held that a statute that prevents the sentencer in capital cases from considering the “defendant’s character and record” as well as circumstances of the offense, can create a situation where a lesser penalty would be imposed instead.[64] While this case does involve the most severe punishment in the United States, these cases normally involve the most heinous crimes. This logic should also be applied to HFO statutes. HFOs face punishments as severe as life in prison without the possibility of parole for drug or property crimes, which are much less severe than a capital offense.[65] It seems just as important to make sure these defendants should be just as protected from the harsh penalties under the HFO statutes as capital defendants are against capital punishments.[66]

An argument is likely to be made against these revisions from those who hold a staunch tough-on-crime mindset.[67] While the proponents of these kinds of laws are concerned about a real issue in the United States,[68] making the amendments proposed above would not be as light on crime as some may argue. If the changes suggested above were adopted, the prosecution would be allowed to offer up aggravating circumstances as well, to sway the jury toward applying HFO status just as if they were deciding for the death penalty in a capital punishment case.[69]

Jurek v. Texas, a capital punishment case, sets out this capital punishment procedure.[70] In this case, the Court observed that the jury weighed aggravating circumstances against the mitigating evidence, and the jury found that the prosecution’s aggravating circumstances weighed heavier.[71] The same procedures can be applied to HFO cases. For example, a defendant who is charged with felony drug possession could offer up facts such as a traumatic childhood, that their parents were addicted to drugs, or any information that could justify a lighter sentence. The prosecution could then point out factors that could sway the jury to not be as sympathetic.

While not as automatic as most states’ current HFO statutes, adopting some of the procedures from capital punishment cases would make sentencing fairer for defendants, while still maintaining a toughness toward crime. This would be done by taking the decision away from the prosecutor and allowing a jury, who is unbiased, to hear contextual information about the defendant and then make the decision to give them an enhanced sentence or not.

 II.     Excluding Lower-Level Felonies from Habitual Offender Statutes

Many states’ HFO statutes include lower-level felonies, which is detrimental for two reasons. First, many lower-level felonies are influenced by a person’s addiction to some sort of substance. Second, the financial impact that sentencing low-level felons to substantial prison time is a heavy burden on the public and the state prisons. Part III of this note will analyze this issue in two subparts. Subpart A will examine the kinds of lower-level felonies that are often included in HFO statutes. Subpart B will then examine the financial impact of lengthy sentences on lower-level felons.

A.     The Relationship between Substance Abuse and Lower-Level Felonies

When thinking of people who are serving the rest of their lives in prison, people’s minds are likely to go to murderers. Despite that, an ACLU study from 2012 shows that, throughout nine states, there were a total of 1,205 people sentenced to life without the possibility of parole (LWOP) for non-violent crimes.[72] Some examples of crimes that have resulted in LWOP include: possession of stolen wrenches, shoplifting, breaking into a liquor store afterhours, and possession of a crack pipe.[73] Many of those convicted under these kinds of statutes, also have a substance abuse disorder.[74] As many statutes currently stand, many people with a substance use disorder are at a risk of receiving sentences similar to those who have been convicted of murder.[75]

This fact is made worse considering society has recently developed a better understanding of substance use disorders. In addition, other experts have determined that a person’s environment (e.g., traumatic experiences) can increase their chances of developing a substance use disorder.[76] Furthermore, if a person lives in a neighborhood that is high in poverty and/or violence, they are also more likely to develop a substance use disorder.[77] These facts have led some to believe that there are more effective ways to rehabilitate people with substance use disorders, rather than giving them a lengthy prison sentence.[78]

One alternative to a prison sentence is, placing offenders in cognitive-behavioral therapy (CBT). CBT is a psychological treatment that focuses on changing an addict’s thought process.[79] This form of therapy is based on three key tenants:.First is the principle that psychological problems can be the result of negative thoughts; .Second, patterns of unpleasant behavior can also cause psychological problems; Finally, people can learn to cope with these psychological problems, which will give them relief from their symptoms.[80] A 2010 study, which included over 2,000 people with a substance use disorder, determined that CBT was an effective method of treatment.[81] They concluded that to get the highest chance of success in CBT, the patient should combine this therapy with another form of treatment.[82] Accomplishing this would be difficult if the person is confined to a prison, where they have limited treatment options. A 2005 report highlights this issue. The author in this report uses a chart to show that 71 percent of prisoners do not receive substance abuse treatment because of budgetary issues.[83] The next two biggest reasons for not receiving treatment is space limitation (51 percent of prisoners) and limited counselors (39 percent of prisoners).[84] If people with substance use disorders were required to complete CBT rather than sentenced to years in prison, they could receive the treatment they need to solve their issues long term. Instead, when they are sentenced to prison, they have a high likelihood of using drugs again when they are released.[85]

CBT is not the only alternative either. While not a particular kind of treatment, in-patient rehabilitation centers can offer a “best of both worlds” approach. On the one hand, the patient, who has committed a crime, is sent to a facility where he or she will be punished for leaving prematurely. On the other hand, the patient is in a facility for a much shorter period than if he or she was sentenced under a HFO statute. Even more importantly, this facility would focus on rehabilitation, whereas a prison serves multiple purposes.[86]

One of the main benefits of an in-patient rehab, compared to any service offered in prisons, is the ability to personalize treatment. To determine which treatment would be the most beneficial to a specific client, a medical professional looks at the substance the person is addicted to.[87] For example, for those addicted to opioids, the preferred treatment is methadone, buprenorphine, extended-release naltrexone, and lofexidine.[88] To emphasize the importance of medicinal rehabilitation, look at its effectiveness.[89] For example, in a 2009 study, those being treated with methadone, “had 33 percent fewer opioid-positive drug tests and were 4.44 times more likely to stay in treatment."[90] This inclusion is important as most prisons do not use medicinal rehabilitation for prisoners who suffer from some substance use disorder.[91] If some of the most effective forms of rehabilitation are not permitted in prisons, then it is time to ask whether or not some prisoners — as well as the public — would benefit more from lower-level felons receiving proper drug treatment, rather than sitting in prisons for years.

B.     Financial Impact of Habitual Offender Statutes

At least two factors impact the cost of how much money HFO statutes cost taxpayers: the normal cost for annually housing an inmate, and healthcare cost for elderly inmates who are serving under HFO statutes.

First, state prisons are significantly funded by the citizens of the state.[92] From 1987 to 2008, state expenditures for corrections went from $10.62 billion to $47.73 billion, an increase of 349 percent.[93] As of 2021, this number had increased to around $80 billion.[94] To add some context to this data, one can look at states that are in different parts of the country and see the costs it takes to house inmates. First, in California, it is estimated to cost about $106,000 to incarcerate an inmate per year.[95] This number is 117 percent higher than a decade prior due to staff and medical costs.[96] In total, California spends around $8.5 billion annually for their incarcerated population.[97] HFOs specifically cost $5.5 billion from 2010 to 2020.[98] On the other side of the country, New York pays around $115,000 per year for each inmate incarcerated.[99] This figure as a whole is a part of a $3.5 billion annual budget for corrections in New York.[100] While California’s cost is the highest in the country, those states not mentioned also are burdened by extreme costs. For example, eleven other states spent at least $ 1 billion annually to incarcerate individuals.[101]

To see how expensive HFOs can be, one must look at the number of HFOs who have been sentenced for a substantial amount of time in a particular state. Take this number and multiply it with the average sentence for those offenders. Then take this number and multiply it with the amount of money a state spends on a prisoner per year. The result will give the average amount of money that the HFOs, with the longest time to serve, will cost the state over the course of their sentence. In 2019, a study was done in Mississippi that highlights these offenders.[102] Mississippi had over 2,600 people incarcerated under its HFO statute in 2019.[103] Of this number, 906 people have been sentenced to at least twenty years, with 439 more being sentenced to at least fifty years in prison.[104] Even by being conservative and using the lowest possible number for each set, the average sentence of these individuals is thirty-five years in prison.[105] Moreover, Mississippi pays around $20,000 per year per inmate, which is one of the lowest in the country.[106] To get the average cost of HFOs in Mississippi over the course of their sentence, multiply the total number of HFOs with substantial sentences (900 inmates) by the average sentence (35 years), which equals 31,500 total years.[107] Then take the total years (31,500 years) and multiply them by the annual cost per inmate ($20,000), which equals $630 million. This is the total amount of money spent over the course of the inmates’ sentences. For transparency, it is important to note that it is unclear how many of the HFOs with substantial sentences are charged with lesser level felonies. The statistics are nonetheless important, however. Removing those who are significantly sentenced for lower-level felonies from the pool would still save the state money, which it could use to combat other issues affecting its citizens.

Furthermore, aside from the normal costs of incarceration, when inmates are sentenced to prison for their entire life or until they are elderly, which are the sentences given to many HFOs, the state becomes responsible for their healthcare. In the United States, the average medical cost per prisoner, per year, is around $6,000, which makes up 18 percent of the average state prison’s expenditures.[108]

These statistics, however, are an average of all prisoners, when the more expensive medical care comes from the aging prison population.[109] This is because senior citizens, regardless of incarceration status, have a higher chance to develop dementia, have impaired mobility, and are more likely to suffer from hearing and vision loss.[110] When incarcerated, however, the Bureau of Justice Statistics concluded that older inmates are more likely to have chronic conditions as well as age quicker than those not incarcerated.[111] This can require the facility to have structural and security accommodations, treatments, and staff trained for special care.[112] Some studies have shown that the cost of incarcerating aging inmates is around $16 billion a year.[113] Maryland recognized this issue as well when it reduced prison sentences with the purpose of lowering the age of the age of its incarcerated population.[114] This move saved them around $185 million over the course of five years.[115] Using Maryland as an example, other states, should look to releasing some of its aging inmates who are only convicted of lower-level felonies. Not only would it benefit those incarcerated, but it would free up some state funds to solve other problems that the public may need assistance with.

Some may argue that compassionate release is already a remedy to this problem and those who are not granted release should still be in there. The problem with this line of thought is the infrequency in which compassionate release is used. 49 states, with the exclusion of Iowa, have some sort of compassionate release, but rarely use them.[116] To add some perspective, in Pennsylvania and Kansas from 2009 to 2016 only sixteen people were granted compassionate release.[117] Statistics for many states are hard to find as only thirteen states are required to track them.[118] Even without the tracking, the difficulty in being granted compassionate release can be seen in the statutes permitting it. California, one of the more severe statutes, requires the person to be, “permanently medically incapacitated, and unable to perform … breathing, eating or eliminating, and require round-the-clock care.”[119] Geogia has a similar statute, which requires the person to be totally incapacitated and expected to die within a year.[120] While it may seem like there is already a remedy for aging inmates, in the form of compassionate release, it is not accessible enough to fix the problem.

III.     A Step in the Right Direction

While the status of HFO statutes paints a bleak picture to many Americans, some states are taking, or attempting to take steps in the right direction. In 2017, Louisiana revised its HFO laws to prohibit life sentences for repeat offenders charged with drug crimes.[121] In addition to these changes, Louisiana judges can also suspend or reduce the sentences of HFOs.[122] Attempting to remedy this issue further, Louisiana extended parole eligibility to over three thousand inmates in 2021.[123] Kentucky is another example of a state where there has been an unsuccessful attempt to fix its HFO statute. Kentucky’s attempt comes in the form of SB 225 which, if passed, would allow the jury to reject the application of the HFO status, allow parole for those serving for non-violent crimes, and prohibit the use of the statute for simple drug possession crimes.[124] Not only was this bill not passed, but Kentucky has passed several laws that will worsen the state’s substantially high incarceration rate.[125]

What happened with Kentucky’s efforts to amend its HFO statutes is not the only example of injustice for HFOs. Even in states like Louisianna, problems remain for thousands of HFO inmates. The remedies provided in the 2017 law are helpful for many inmates, but the benefits do not apply retroactively.[126] When remedying this issue, it is important to not think of those who may be hindered in the future, but to also look back on those already sentenced under HFO statutes.

Conclusion

The public has an interest in punishing repeat felony offenders. The changes that this article suggests would work toward the same goal, while amending the harsh HFO statutes. First, by removing the decision to apply HFO status from the prosecutor and placing it in the hands of the jury, the risk of one person’s potential bias is removed, and the jury would decide if a prolonged sentence were necessary. Secondly, by removing lower-level felonies from HFO statutes, many people who are motivated by drug use can get the help they need, which could give them a better chance of being a productive member in the future. If alternative treatment is not convincing, the money saved, could be put back into the community and would benefit the public more than incarcerating a person with substance use disorder.

The solution to the biggest problems with HFO statutes is simple: Fix the arbitrariness of their application to ensure that every defendant has an equal chance and exclude lower-level felonies from the statutes to ensure the public does not have to bear the financial burden and the defendant gets proper treatment instead.

[*] J.D Expected 2025, University of Kentucky J. Rosenberg College of Law; BA History & Legal Studies 2021, Morehead State University.

[2] See Matt Mencarini, Chris Kenning & Jonathan Bullington What is a persistent felony offender? The law fueling Kentucky’s huge incarceration rate, Courier J. (Feb. 3, 2022), https://www.courier-journal.com/story/news/investigations/2022/02/03/what-to-know-kentucky-persistent-felony-offender-pfo-law/8811901002/ [https://perma.cc/E3VE-WMFP]; see also Emily Frances Lynch, Johnson v. United States: The Impact on Texas’ Habitual Offender Statute, 45 Hastings Const. L.Q. 187 (2017).

[3] Ky. Rev. Stat. Ann. § 532.080 (West 2012).

[4] Ky. Rev. Stat. Ann. § 218A.1415 –1417 (West 2011); Mencarini, Kenning & Bullington, supra note 2.

[5] See Infra Part II B.

[6] Ky. Rev. Stat. Ann. § 532.060 (West 2011).

[7] See Matthew S. Crow & Katherine A. Johnson, Race, Ethnicity, and Habitual-Offender Sentencing: A Multilevel Analysis of Individual and Contextual Threat, 19 Crim. Just. Pol’y. Rev. 63, 63 (2008); See also Charles Crawford, Gender, Race, and Habitual Offender Sentencing in Florida, 38 Criminol’y 263, 276–278 (1998) (noting that black females are more than twice as likely to be habitualized in areas where economic inequality along racial lines is comparatively low).

[8] Wayte v. United States, 470 U.S. 598, 607 (1985) (citing United States v. Goodwin, 457 U.S. 368, 380, n.11 (1982)).

[9] See Peter Krug, Prosecutorial Discretion and Its Limits, 50 Am. J. Compar. L. Supp. 643, 643–47 (2002).

[10] Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978).

[11] Id at 360.

[12] Id. at 364–365.

[13] James D. Zirin, Death is Different, The Hill (Dec. 14, 2020, 1:30 PM), https://thehill.com/opinion/criminal-justice/531564-death-is-different/; accord Furman v. Georgia, 408 U.S. 238, 248 n.11 (1972) (Douglas, J., concurring).

[14] See., Facts about the Death Penalty, Death Penalty Info. Ctr. (Dec. 7, 2016), https://www.supremecourt.gov/opinions/URLs_Cited/OT2016/16-5247/16-5247-2.pdf [https://perma.cc/AE4A-NMH8].

[15] See Caitlyn Lee Hall, Good Intentions: A National Survey of Life Sentences for Nonviolent Offenses, 16 NYU J. Leg. & Pub. Pol’y. 1101, 1139–41 (2013).

[16] See Death Penalty Info. Ctr., supra note 12; see also Hall, supra note 13.

[17] Lockett v. Ohio, 438 U.S 586, 605 (1978).

[18] See e.g., Ky. Rev. Stat. Ann. § 532.080 (West 2012); see also LA R.S. 15.529.1 (West 2019).

[19] See Death Penalty Info. Ctr., supra note 12.

[20] See Crow & Johnson, supra note 5; see also Crawford supra note 5.

[21] See Crow & Johnson, supra note 5, at 64.

[22] See Id.

[23] Tana Ganeva, ‘Habitual Offender’ Laws Imprison Thousands for Small Crimes – Sometimes for Life, Scheerpost (Sep. 28, 2022), https://scheerpost.com/2022/09/28/habitual-offender-laws-imprison-thousands-for-small-crimes-sometimes-for-life/. [https://perma.cc/5NXP-ZX6L].

[24] Id.

[25] Id.

[26] Race and Sentencing, Nat’l. Ass’n. Crim. Def. Law., (Nov. 23, 2022), https://www.nacdl.org/Content/Race-and-Sentencing. [https://perma.cc/DZQ6-5NSE].

[27] Id.

[28] See Death Penalty Info. Ctr, supra note 12; See also Crow & Johnson, supra note 5; see also Crawford, supra note 7; see also Ganeva, supra note 21; see also Beth Shelburne, Alabama’s Habitual Offender Law: Driving Mass Incarceration Since 1977, ACLU Alabama (May 1, 2020), https://www.alabamasmartjustice.org/reports/hfoa (providing evidence of disparity between races when it comes to habitual offender statute application); [https://perma.cc/QHA8-2QFK]; see also, Race and Sentencing, supra note 24.

[29] See Apprendi v. New Jersey, 530 U.S. 466, 490–91 (2000).

[30] Id.

[31] Id.

[32] Id. at 490-97.

[33] Ring v. Arizona, 536 U.S. 584, 602 (2002).

[34] Id.

[35] Ring, 536 U.S. at 609.

[36]See Hurst v. Florida, 577 U.S. 92 (2016).

[37] Id. at 97.

[38] Ky. Rev. Stat. Ann. § 532.080(1) (West 2012); La. Stat. Ann. § 15:529.1 (2019).

[39] See Matthew S. Schwartz, Black Man Serving Life Sentence for Stealing Hedge Clippers Granted Parole, NPR (Oct. 18, 2020, 8:06 AM), https://www.npr.org/2020/10/18/925198663/black-man-serving-life-sentence-for-stealing-hedge-clippers-granted-parole [https://perma.cc/5AWS-WSEC].

[40] Id.

[41] Id.

[42] See Apprendi, 530 U.S. at 490.

[43] Beth Hundsdorfer, Prisoner Review Board releases final Illinoisan serving life sentence for ‘three-stikes’ drug offense, NPR Ill. (Dec. 21, 2023, 1:15 PM), https://www.nprillinois.org/equity-justice/2023-12-21/prisoner-review-board-releases-final-illinoisan-serving-life-sentence-for-three-strikes-drug-offense [https://perma.cc/ZYN6-T9HT].

[44] Id.

[45] Id.

[46] Schwartz, supra note 39.

[47] Hundsdorfer, supra note 43.

[48] Brian Brown & Greg Jolivette, A Primer: Three Strikes – The Impact After More Than a Decade, Legis.Analyst’s Office (Oct. 2005), https://lao.ca.gov/2005/3_Strikes/3_strikes_102005.htm [https://perma.cc/A5G8-X9XM].

[49] See generally, Hundsdorfer, supra note 43 (Providing an example of where a judge explicitly stated their hands were tied when it came to habitual offender sentencing).

[50] See Ky. Rev. Stat. Ann. § 532.080 (West 2012); see N.Y. § 70.10 (McKinney 2010); see Fla. Stat. Ann. § 775.087 (West 2023).

[51] Id.

[52] See ACLU, The Case Against the Death Penalty (Dec. 11, 2012), https://www.aclu.org/documents/case-against-death-penalty. [https://perma.cc/66PR-E5GV].

[53] SeeWiggins v. Smith, 539 U.S. 510, 534–38 (2003) (deciding that mitigating evidence could have influenced the outcome of the case, so ineffective assistance of counsel under the Sixth Amendment was a valid claim).

[54] Id. at 514.

[55] Id. at 515–16.

[56] Id.

[57] Id. at 535.

[58] Id.

[59] Id (citing Penry v. Lynaugh, 492 U.S. 302, 319 (1989)).

[60] Id.

[61] Lockett, 438 U.S. at 602–06.

[62] Id. at 604–05.

[63] Id. at 605.

[64] Id. at 605.

[65] See ACLU, A Living Death: Life without Parole for Nonviolent Offenders 35–36 (2013) [hereinafter “A Living Death”].

[66] See Id.

[67] See Charis E. Kubrin & Rebecca Rublitz, How to Think about Criminal Justice Reform: Conceptual and Practical Considerations, 47 Am . J. Crim. Just. 1050, 1053 (2022).

[68] Id. at 1057.

[69] See Jurek v. Texas, 428 U.S. 262, 270 (1976).

[70] Id. at 267, 270.

[71] Id. at 271 n.6.

[72] A Living Death, supra note 61, at 22.

[73] Id. at 5, 22.

[74] Cf. Abigail A. McNelis, Habitually Offending the Constitution: The Cruel and Unusual Consequences of Habitual Offender Laws and Mandatory Minimums, 28 Geo. Mason Univ. Civ. Rts. L.J. 97, 97–98 (2017) (Proving an example of a man sentenced to LWOP for cultivating marijuana for his own personal use).

[75] Id.

[76] Prevention, Nat’l. Inst. on Drug Abuse (Sept. 2023), https://nida.nih.gov/research-topics/prevention#risk-and-protective-factors-impact [https://perma.cc/P75H-K7R4].

[77] Id.

[78] See Nora Volkow, Addiction Should Be Treated Not Penalized, Nat. Inst. on Drug Abuse (May 7, 2021), https://nida.nih.gov/about-nida/noras-blog/2021/05/addiction-should-be-treated-not-penalized [https://perma.cc/W6JV-F8VE].

[79] Stephan J. Bahr, Amber L. Masters, & Bryan M. Taylor, What Works in Substance Abuse Treatment Programs for Offenders. 92 Prison J. 155, 157 (2012).

[80] What is Cognitive Behavioral Therapy, Am. Psych. Assoc. (2017), https://www.apa.org/ptsd-guideline/patients-and-families/cognitive-behavioral [https://perma.cc/QJK2-N44J].

[81] R. Kathryn McHugh, Bridget A. Hearon, & Michael W. Otto, Cognitive-Behavioral Therapy for Substance Use Disorders, 33 Psychiatric Clinics N. Am. 511, 512 (2010).

[82] Id. at 520.

[83] Center for Substance Abuse Treatment, Substance Abuse Treatment for Adults in the Criminal Justice System 190–91 (2005).

[84] Id.

[85] See Ingrid A. Binswanger, Carolyn Nowels, Karen F. Corsi, Jason Glanz, Jeremy Long, Robert E. Booth, & John F. Steiner, Return to drug use and overdose after release from prison: a qualitive study of risk and protective factors, 7 Addiction Sci. & Clinical Prac., no. 1, 2012, at 1–5.

[86] Manuel Escamilla-Castillo, The Purposes of Legal Punishment, 23 Ratio Juris 460, 460 (2010).

[87] Drugs Brains and Behavior: The Science of Addiction, Nat’l. Inst. Drug Abuse (July 2011), https://nida.nih.gov/publications/drugs-brains-behavior-science-addiction/treatment-recovery [https://perma.cc/V7MJ-Z7CM].

[88] Id.

[89] See How effective are medications to treat opioid use disorder?, Nat’l. Inst. Drug Abuse (May 2017), https://nida.nih.gov/publications/research-reports/medications-to-treat-opioid-addiction/efficacy-medications-opioid-use-disorder [https://perma.cc/7PPV-7S37].

[90] Id.

[91] How is opioid use disorder treated in the criminal justice system?, Nat’l. Inst. Drug Abuse (May 2017), https://nida.nih.gov/publications/research-reports/medications-to-treat-opioid-addiction/how-opioid-use-disorder-treated-in-criminal-justice-system. [https://perma.cc/33UB-WDA6].

[92] See Dave Adkisson et al., Right-Sizing Prisons, Pew Ctr. on States (Jan. 2010), https://www.pewtrusts.org/-/media/legacy/uploadedfiles/pcs_assets/2010/rightsizing20prisonspdf.pdf [https://perma.cc/63EL-PLHZ].

[93] Id.

[94] Ronnie K. Stephens, Annual Prison Costs A Huge Part Of State and Federal Budgets, Interrogating Just. (Feb. 16, 2021), https://interrogatingjustice.org/prisons/annual-prison-costs-budgets/ [https://perma.cc/6GNS-45X2].

[95] How much does it cost to incarcerate an inmate?, Legis. Analyst’s Off. (Jan. 2022), https://lao.ca.gov/policyareas/cj/6_cj_inmatecost [https://perma.cc/RQ7C-4AF6].

[96] Id.

[97] Stephens, supra note 93.

[98] See Anthony Nagorski, Arguments Against the Use of Recidivist Statutes That Contain Mandatory Minimum Sentences, U. St. Thomas J. L. & Pub. Pol’y, Fall 2010, at 214, 228 (2010).

[99] Jullian Harris-Calvin, Sebastian Solomon, Benjamin Heller, & Brian King, The Cost of Incarceration in New York State, Vera (Oct. 2022), https://www.vera.org/the-cost-of-incarceration-in-new-york-state [https://perma.cc/D5BV-96MC].

[100] Jullian Harris-Calvin, Sebastian Solomon, Benjamin Heller, & Brian King, An Analysis of the New York State Department of Corrections and Community Supervision’s Budget, Vera (Oct. 2022), https://www.vera.org/downloads/GJNY_DOCCS-Budget-Explainer_10.25.22.pdf. [https://perma.cc/X9H6-X53W].

[101] See Stephens, supra note 93.

[102] FWD, We All Pay: Mississippi’s Harmful Habitual Laws (Nov. 2019), https://www.fwd.us/criminal-justice/mississippi/we-all-pay/ [https://perma.cc/C2AY-MS5C].

[103] Id. at 2.

[104] Id.

[105] See Id.

[106] National Institute of Corrections, Mississippi 2019, https://dev-nicic.zaidev.net/resources/nic-library/state-statistics/2019/mississippi-2019 (last visited Sep. 6, 2024).

[107] See generally, FWD supra note 101.

[108] Shivpriya Sridhar, Robert Cornish, & Seena Fazel, The Costs of Healthcare in Prison and Custody: Systematic Review of Current Estimates and Proposed Guidelines for Future Reporting, Frontiers Psych., Dec. 2018, at 5.

[109] Matt McKillop & Alex Boucher, Aging Prison Populations Drive Up Costs: Older individuals have more chronic illnesses and other ailments that necessitate greater spending, Pew (Feb. 20, 2018), https://www.pewtrusts.org/en/research-and-analysis/articles/2018/02/20/aging-prison-populations-drive-up-costs. [https://perma.cc/6763-R7ZG].

[110] Id.

[111] Id.

[112] Id.

[113] Hope Reese, What Should We Do about Our Aging Prison Population?, JSTOR Daily (July 17, 2019), https://daily.jstor.org/what-should-we-do-about-our-aging-prison-population/ [https://perma.cc/4ASX-DELF].

[114] Id.

[115] Id.

[116] Mary Price, Everywhere and Nowhere: Compassionate Release in the States, Release Aging People in Prison 8, 12 (June 2018), https://famm.org/wp-content/uploads/2023/12/Exec-Summary-Report.pdf [https://perma.cc/UN9Y-G3SZ].

[117] Id. at 12–13.

[118] Id. at 12.

[119] Id. at 13.

[120] Id.

[121] Dan Copp, Changes Coming to Habitual Offender Law, Houmatoday (Updated Jan. 22, 2018, 3:25 PM), https://www.houmatoday.com/story/news/crime/2017/09/25/changes-coming-to-habitual-offender-law/16029712007/ [https://perma.cc/NE6C-P9SR].

[122] Id.

[123] Mark Ballard, About 3,000 Inmates in Louisiana Could Get Parole Under New Law; Here’s Who Would be Eligible, The Advocate (July 31, 2021), https://www.theadvocate.com/baton_rouge/news/politics/legislature/article_6461957c-f234-11eb-9813-677f50cb4b9a.html [https://perma.cc/XZ9K-9ALL].

[124] Kaylee Raymer, Progress Made on Drug Policy in 2023 Though the Legislature Increased Other Criminal Penalties, KyPolicy (Apr. 13, 2023), https://kypolicy.org/kentucky-criminal-legal-recap-2023/ [https://perma.cc/T6KQ-9L7G].

[125] Id.

[126] Ballard, supra note 122.