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

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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

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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

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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

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‍ 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

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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

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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

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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

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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

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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

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Amanda Lindsey*

Introduction

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

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

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

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

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

A.     Structural Poverty and Economic Decline

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

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

B.     The Growth of Incarceration as an Economic Strategy

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

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

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

C.    A Pretrial System that Punishes Poverty

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

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

D.    Racial Disparities in Kentucky’s Carceral System

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

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

II.              The Emergence and Impact of Charitable Bail Organizations

A.    Origins and Mission

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

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

B.     Demonstrated Success

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

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

C.    Misplaced Blame on Charitable Bail Organizations

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

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

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

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

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

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

A.     Improving Risk Assessment in Pretrial Decisions

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

B.     Learning from Other States’ Bail Reform Models

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

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

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

Conclusion

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

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

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

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

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

[4]See id.

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

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

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

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

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

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

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

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

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

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

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

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

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

[18]Id.

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

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

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

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

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

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

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

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

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

[28]Id. at 23.

[29]Id. at 25.

[30]Id. at 24–27.

[31]Id. at 25.

[32]Id. at 25–26.

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

[34]Id.

[35]Id. at 8.

[36]Id. at 3.

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

[38]Id.

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

[40]See id. at 18.

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

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

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

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

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

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

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

[48]Id. at 4.

[49]Id.

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

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

[52]Id.

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

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

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

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

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

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

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

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

[61]Id. at 3, 5.

[62] Preston, supra note 5.

[63]Id.

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

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

[66]Id.

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

[68]Id. at 63.

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

[70]Id.

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

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

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

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

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

[76]See Dervishi, supra note 73.

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

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

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

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

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

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

[83]Id. at *9–10.

[84]Id.

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

[86]Id.

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

[88]Id.

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

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

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

[92]Id.

[93]Id.

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

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

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

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

[98]Id.

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

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

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

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Conor Washburn*

Introduction

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

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

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

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

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

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

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

I.  “Secret Law”

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

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

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

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

II.  First Amendment Right of Access

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

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

A.  Expansion of the Right of Access Beyond the Trial

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

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

B.  Right of Access Beyond Criminal Proceeding

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

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

III.  Conflicting Interests

A.  The ACLU’s Interest in Disclosure

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

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

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

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

B.  The Government’s Interest in Secrecy

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

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

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

IV.  FISC’s Exceptionalism vs. Constitutional Norms

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

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

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

V.  Refining the Experience and Logic Test

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

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

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

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

Conclusion

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

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

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

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

[2] Id.

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

[4] Civiletti, supra note 3, at 1–2.

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

[6] Id.

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

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

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

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

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

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

[13] Id.

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

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

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

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

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

[19] Id.

[20] Id.

[21] Id.

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

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] Hogle & Abdo, supra note 12.

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

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

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

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

[34] Id. at 564.

[35] Id. at 569.

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

[37] Id. at 606.

[38] Id.

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

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

[41] Id. at 509.

[42] Id. at 510.

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

[44] Id. at 9.

[45] Id. at 10.

[46] Id. at 11.

[47] Id. at 12–13.

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

[49] Id. at 150.

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

[51] Id. at 683.

[52] Id. at 694.

[53] Id. at 695.

[54] Id. at 709.

[55] Id. at 683, 709.

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

[57] Id. at 289–90.

[58] Id. at 290.

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

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

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

[62] See id.

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

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

[65] Id.

[66] Id.

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

[68] See id.

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

[70] See id.

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

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

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

[74] Id. at 7–8.

[75] Id. at 10–11.

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

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

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

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

[80] Id.

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

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

[83] Id.

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

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

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

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

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

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

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

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

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

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

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

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

[96] Id.

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

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

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

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

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

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

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Dalton Gregory*

Introduction

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

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

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

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

I.               Background on Cottage Food Laws

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

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

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

II.             The Benefits of Cottage Foods

A. The Benefits to Food Security

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

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

B. Environmental Benefits of Cottage Foods

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

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

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

C. Health Benefits of Cottage Foods

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

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

D. Economic Benefits

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

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

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

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

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

III.           Kentucky’s Bifurcated Regulation System

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

A. Home-Based Processors

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

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

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

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

B. Home-Based Microprocessors

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

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

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

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

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

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

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

IV.       Reforming Kentucky’s Cottage Food Laws

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

[3] Id.

[4] Id.

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

[6] Id.

[7] Id.

[8] Id. at 10.

[9] Id. at 12.

[10] Id. at 13, 16.

[11] Id. at 14.

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

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

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

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

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

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

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

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

[20] Id. at 604.

[21] Id.

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

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

[24] Id.

[25] Id. at 1211.

[26] Id.

[27] Id. at 1213.

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

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

[30] Id.

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

[32] Id.

[33] See id.

[34] Id.

[35] Id.

[36] Id.

[37] Id.

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

[39] See id.

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

[41] Id.

[42] Id.

[43] Id.

[44] Id.

[45] Id.

[46] Id.

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

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

[49] Id.

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

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

[52] Id.

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

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

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

[56] § 217.136(1)(a).

[57] § 217.136(3).

[58] § 217.136(5).

[59] Id.

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

[61] § 217.136(6).

[62] § 217.136(7).

[63] § 217.136(8).

[64] § 217.136(9).

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

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

[67] § 217.137.

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

[69] Id. § 4(1).

[70] Id. § 4(2).

[71] Id. § 4(6).

[72] Id. § 4(2)(f)-(g).

[73] Id. § 8(1).

[74] Id. § 9(1).

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

[76] Id.

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

[78] Id. § 5.

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

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

[81] Id. § 3(5)(b).

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

[83] See supra Part II(C).

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

[85] See supra Part II(D).

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

[87] See supra Part II(B).

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

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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

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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.

Alone in the Storm: Trump's Plans to Dismantle Federal Disaster Response Will Leave Vulnerable States Behind the Federal Preparedness and Response Elimination Agenda

Alone in the Storm: Trump’s Plans to Dismantle Federal Disaster Response Will Leave Vulnerable States Behind the Federal Preparedness and Response Elimination Agenda

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Ella Helmuth*

Introduction

On June 10, 2025, President Trump informed the press and the country that after the 2025 hurricane season, he and Homeland Security Secretary Kristy Noem plan to dismantle the Federal Emergency Management Agency (FEMA).[1] The President has shared plans to cut funding for disaster aid in general, which will come directly from the President’s office going forward.[2] Consequently, this will drastically change the landscape of emergency response and preparedness in this country.

These plans, and those detailed below, reflect President Trump’s broader aims to limit government spending on the priorities he sees as wasteful;[3] responsibilities for natural and other widespread disasters will shift onto the states. Waiting until after the 2025 hurricane season is a new timeline but not a new plan. President Trump has previously stated: “I say you don't need FEMA, you need a good state government” and called FEMA “not good.”[4] He has cut significant leadership staff from FEMA and others have left.[5] Public and individual aid is already tapering out.[6]

In January of 2025, the White House established a FEMA review council, asserting that federal response to Hurricane Helene and other disasters demonstrated a failure in FEMA’s response capabilities and implicated bureaucratic barriers to successful disaster response.[7] The review council will provide the administration and the agency with recommendations on federal disaster response. At least in part, the establishment of the review council has led the new acting administrator of FEMA, Daniel Richardson, to neglect to publish a hurricane response plan for the 2025 season, which began on June 1.[8] He does not want to “get ahead of” the review council’s recommendations.[9] Trump has taken issue with FEMA in the past over alleged political biases in the agency’s aid responses. This concern is referenced in the order establishing the review council.[10] The council has already begun soliciting feedback from individuals and organizations who have interacted with FEMA in the past.[11]

On March 18, 2025, the Trump administration released Executive Order (EO) 14,239, “ACHIEVING EFFICIENCY THROUGH STATE AND LOCAL PREPAREDNESS.”[12] The Order focuses on the role of state and local governments in disaster resiliency, preparedness, and response.[13] The EO states, “[i]t is the policy of the United States that State and local governments and individuals play a more active and significant role in national resilience and preparedness” and that preparedness is most effectively managed at state, local, and individual levels.[14] It is the position of the EO that transferring more of these responsibilities to the state will save American lives and reduce taxpayer burdens.[15] The EO also asserts that national critical infrastructure resilience policies will shift from the all-hazards approach to a risk-based approach to disaster planning, a drastic departure from traditional models that will be explored later in this article.[16]

In April 2025, the Administration also terminated the Building Resilient Infrastructure and Communities (BRIC) grant program, FEMA’s primary disaster mitigation support for states.[17] BRIC grants supported projects to mitigate risk from future disasters.[18] Communities were required to prove the projects were cost effective and would increase their resilience to such events.[19] The termination of BRIC, in concert with EO 14,239, makes clear that states are not only losing the support of the presidential administration for their preparedness, but their funding for that purpose as well.

The combination of EO 14,239 and the elimination of BRIC, Trump’s stated plans to eliminate FEMA and dismantle its response capabilities, and the broader administrative goal of reducing federal spending has made clear what states may be able to expect in the wake of disasters going forward. FEMA recently denied the provision of aid for Arkansas tornadoes, West Virginia flooding, and Washington windstorms for which officials were anticipating assistance.[20] These denials were seen by state officials as very unusual.[21] In the aftermath of those disasters, a spokesman for the National Security Council, and thus the federal emergency apparatus, said state and local governments “often remain an impediment to their own community’s resilience,” and encouraged states to take a larger role in recovery.[22] This kind of communication shift from federal officials is jarring because FEMA has been the centralized authority for major disaster response for decades.[23] Extended relief was also recently terminated for continued impacts of Hurricane Helene in North Carolina.[24] That state is far from recovered, and its leaders too are left at a loss for how to support their citizens.[25]

This analysis considers the multifaceted impacts of dismantling federal response and preparedness infrastructure as it has existed in the past, with specific analysis of the vulnerabilities created for the state of Kentucky and other high-disaster, under-resourced states. We face the reality of state capacity limitations, the fundamental flaw in the Trump Administration’s plan to turn over disaster management to the states. Second, we explore the new risk-based approach to disaster management and examine how problems with federal emergency response and preparedness have been misinterpreted as structural issues when they are actually failures of implementation. Finally, we consider the particular vulnerabilities for the state of Kentucky caused by the proposed cuts to federal disaster intervention.

EO 14,239, along with President Trump and other officials’ statements, asserts a mandate on state governments to take over their own disaster preparedness and response with limited federal support.[26] This is a misguided upheaval of a system that allows federal disaster management on a scale that could never be achieved in all fifty states, all of which, in the age of climate change, are now at higher risk than ever for major disasters.

I.               The Reality of State Capacity vs Administration Assumptions

Natural disasters in the United States are increasing in frequency and getting more expensive.[27] The United States experienced twenty-seven-billion-dollar disasters in 2024, second only to twenty-eight in 2023.[28] In this context, now is the time to ramp up federal preparedness and response measures while supporting state mitigation efforts, not depend on states with greatly varied capacities to deal with these worsening disasters.

There are major advantages to federal authority over disaster responses, including decades of institutional knowledge, economies of scale, and established systems of communication and authority. Over its history, FEMA has built up expertise and capacity in responding to complex and widespread disasters.[29] The Director of Wyoming’s Office of Homeland Security said, “There are economies of scale [that a nationwide agency provides]. States don't have that capability built to handle a disaster every single year.”[30] To exemplify these economies of scale, Andy Beshear, Governor of Kentucky, explained that the overhead costs of setting up a system at the state level capable of replicating federal disaster response would “eat up most of that money” (the federal money) distributed between all fifty states.[31]  Former FEMA leader Michael Coen said of response and mitigation measures, “Having that capability in every single state instead of having one FEMA is not the best use of tax dollars . . . .”[32] Federal investment in and management of disaster mitigation projects nationwide are essential to ensure efficient use of funds and effort. A study showed that every dollar invested in disaster mitigation by select federal agencies saves six dollars.[33]

In contrast, putting these responsibilities onto each state willfully discards decades of institutional knowledge, the efficiency of operating on a federal scale, and the expertise and resources that come with the federal workforce. States would need “thousands of additional personnel to inspect damage, distribute disaster aid and plan the rebuilding of public infrastructure.”[34] This kind of agency construction also lacks decades of institutional knowledge held by federal agencies and puts states on a serious learning curve. The potential problem is nationwide, but it becomes more urgent in considering smaller states with small budgets, where disasters still threaten serious damage. For example, West Virginia falls in the lower half of state budgets, meaning its staff and resources are limited, but has been hit with severe flooding twice in the last year.[35] A state like West Virginia attempting to build up a program capable of replicating FEMA’s response to such disasters, even with plenty of funding, would be catastrophic if not impossible.

While there are many problems with current federal response and current federal mitigation projects, the answer is not to turn these responsibilities onto the states. Federal agency response can be fragmented and inefficient, but the solution to that problem is not to further fragment response and preparation by dividing it into fifty parts.

The nation has a cooperative aid system called the Emergency Management Assistance Compact, ratified by Congress, which allows states and territories to share resources and personnel in the event of disasters.[36] This kind of coordination from the federal organization prevents competition between states over resources, including personnel. Rescinding federal management would create a situation in which states are rivals for limited resources. This would put under-resourced states like Kentucky and West Virginia at risk of being outbid by states with more competitive economies, creating a potentially dangerous and disparate system of disaster resource distribution. If all the best emergency management staff are drawn to California, smaller states would be left treading water, literally.

II.             Misdiagnosing the Problem: Lessons Learned from Hurricane Katrina

The existing structure of emergency response and preparedness in the United States places FEMA, and its comprehensive “all-hazards” approach to disasters at the forefront.[37] An “all-hazards” approach to emergency management focuses on flexible protocols that can be applied to a broad range of disasters and emergencies.[38] President Trump’s EO and policy statements would shift that approach to a risk-based protocol, a more tailored risk versus benefit strategy which would place responsibility on the states rather than FEMA.[39] The Executive Order explicitly states:

This order empowers State, local, and individual preparedness and injects common sense into infrastructure prioritization and strategic investments through risk-informed decisions that make our infrastructure, communities, and economy resilient to global and dynamic threats and hazards.[40] 

Unfortunately, what the administration sees as common sense is not universal. FEMA’s current “all-hazards” approach, when functioning correctly, allows coordination with state and local governments while ensuring that communities are prepared to respond to a wide variety of potential disasters.[41] As with any system applied to dire situations over a significant period of time, there have been both successes and failures under the “all-hazards” system (see Hurricane Katrina[42] for failure, Hurricane Sandy[43] for success). Given this time of increased and unprecedented natural disasters[44] due to climate change, changing our approach to risk-based seems reckless. Our old risks are no longer indicative of our new ones. The implementation of all-hazards can be improved, but it and the states should not be abandoned. Now is the time to be prepared for anything.

Hurricane Katrina provides evidence for maintaining federal authority and capacity in disaster response in two different ways. The existing “all-hazards” structure was fundamentally sound, but the existing tools and authorities were not properly implemented. Additionally, the federal government was not proactive enough about “pushing” resources to the states. Trump’s plan ensures that the federal government will never be sufficiently proactive by dismantling much of its ability to respond at all.

The White House report following Hurricane Katrina identified a critical flaw in response which required reform:

Our decades-old system, built on the precepts of federalism, has been based on a model whereby local and State governments wait to reach their limits and exhaust their resources before requesting Federal assistance . . . . In other words, the system was biased toward requests and the concept of “pull” rather than toward anticipatory reactions and the proactive “push” of Federal resources.[45]

The problem with federal disaster management during Hurricane Katrina was not the “all-hazards” structure itself, but rather the implementation of existing authorities and protocols. As David Feinberg noted in his argument for greater federal involvement in disaster response, much of the issue with the response to Hurricane Katrina was the slow reaction on the part of every level of government under the cooperative federalist structure.[46] The local government of New Orleans failed to call an evacuation order quickly enough to protect its citizens, the state government failed to request federal assistance in a timely manner, and the federal government did not respond to that request promptly.[47]

However, the tools for an effective response to that disaster already existed within the federal framework. In her article Katrina and the Rhetoric of Federalism, Christina Wells details how the “pull” system collapsed, but shows the fail safes for that in the existing structure of response.[48] The Catastrophic Incident Annex is part of the existing federal system that creates a proactive, overarching federal response to catastrophic disasters by allowing the President to act without a request from the governor.[49] Its use was completely justified during Hurricane Katrina, in fact it was “written for a disaster such as Katrina.”[50] It was never deployed in 2005.[51] This demonstrates that the problem was not structural inadequacy but rather the failure to properly implement existing authorities.

Catastrophes on the scale of Hurricane Katrina require a uniquely proactive federal posture compared to the disasters many states handle every year. This is not because the cooperative federalism, “all-hazards” system in place is wrong, but because the federal government has to take on different roles under different circumstances. “All-hazards” allows this type of flexibility when applied correctly. The effective application of response capabilities under catastrophic circumstances requires the federal government to use their broad authority to the fullest extent. Leaving Louisiana and Mississippi to fend for themselves during Hurricane Katrina would have created an even greater catastrophe than the unprecedented one that occurred. But it is certain that the federal government could have invoked their existing authority and better served their citizens.

Trump’s proposals would reduce federal readiness in the event of a disaster like Katrina. Executive Order No. 14,239 focuses on preparedness and the Administration plans to dismantle the response framework as it exists by abandoning the “all-hazards” approach in exchange for a risk-based approached.[52] This is a departure from the building blocks of decades of emergency preparedness and response, at the federal level and on down. The White House report shows that the government failures of Hurricane Katrina were caused, at least in part, by the lack of federal proactiveness and too much reliance on the state to act before pulling federal resources. The Trump Administration seems intent on solving this problem by creating significantly more barriers to pulling those essential resources.

This fundamental misdiagnosis of the problem with disaster management in this country as one of structurally too much federal power will create inefficiencies and discrepancies that leave states like Kentucky vulnerable to disasters. The “all-hazards” approach provides the necessary flexibility for an era of climate-driven uncertainty, while the post-Katrina analyses pointed toward greater application of federal authority (push, not pull) in a catastrophe. Abandoning both lessons simultaneously represents a dangerous step backward in national disaster preparedness.

III.           Kentucky’s Vulnerability

Shifting the structure of emergency preparedness and response away from federal agencies will have major detrimental impacts on the Commonwealth of Kentucky and other resource-constrained, high disaster occurrence states. Kentucky has received $2.9 billion in federal disaster aid since 2017.[53] In comparison, in the 2024 budget session, the Kentucky legislature implemented caps on disaster spending, allowing the Kentucky Department of Military Affairs to request up to $75 million in the 2024 fiscal year and $100 million total over the 2024 and 2025 fiscal years.[54] It is clear from the disparity in these numbers that Kentucky agencies do not currently possess the capacity to manage billions of dollars in disaster money, the expertise the federal government brings, or the benefit of the economies of scale that exist in federal disaster response. These problems occur even if the federal government pulls their direct physical assistance and distributes financial aid directly to the states, which President Trump’s statements indicate they do not plan to do.

Kentucky has received fifteen major disaster declarations since 2020 and is representative of other resource-constrained states facing a high frequency of disasters.[55] The state’s existing emergency response system has been completely overwhelmed by the frequency of disasters, as Kentucky houses eight of the nine counties in the country with the highest disaster declarations.[56] They have no capacity to do much of anything but triage, much less completely restructure to receive fewer resources from the federal government.[57]

In the year following the 2022 Eastern Kentucky floods, the federal government spent $281 million on Eastern Kentucky recovery.[58] $108 million of that went to individual assistance for flood survivors, and $49.4 million went to public assistance for infrastructure needs.[59] As referenced above, Governor Beshear explained that the overhead costs and staffing needs would be overwhelming.[60] It is simply infeasible to expect states like Kentucky to rebuild efficient disaster preparedness and response mechanisms when the federal government has been managing all fifty states from a gigantic, heavily resourced agency for the past fifty years.

Neither state nor the federal government’s response to the 2022 flooding in Eastern Kentucky, Southwestern Virginia, and West Virginia were perfect. It shone a light on issues with the National Flood Insurance Program, FEMA flood mapping, and emergency alert systems combined with lack of broadband in rural areas.[61] But the flooding did provide an excellent example of what makes state and federal coordination so important in the wake of such a devastating disaster. In many cases, we saw rapid federal response to the flooding. President Biden issued a major disaster declaration covering thirteen counties on July 29, 2022, about two days after flooding began.[62] Temporary federal housing was up in a little more than a month, providing a critical resource for the multitudes of displaced people in the state.[63] This process generally takes several months.[64] There were also federal responses that the state of Kentucky would struggle to replicate. These included interagency recovery coordination from multiple federal agencies, the removal of 409,000 tons of debris from 606 miles of creeks and streams, and a property acquisition program moving the fastest in FEMA history.[65] Kentucky and most other states would be far out of their depth in managing a response of this magnitude.

Conclusion

The Trump Administration’s plan to eliminate federal support for disaster preparedness and response, leaving these essential government functions up to the states, demonstrates a deep misunderstanding of the problems with disaster management in this country. Dismantling decades of federal action and authority will both create financial and structural inefficiencies the administration claims it wants to avoid and leave many states completely vulnerable to disasters they are without the capacity to handle. The system of cooperative federalism as it exists has mechanisms in place to take advantage of economies of scale, allow cooperation between states, and ensure the federal government is a safeguard against state and local failures. The problems of the past are of implementation, not the structure of the system. To improve efficiency and protect citizens, the administration needs to optimize the existing systems, not fragment them into fifty uncoordinated state level parts.

* Member of the Kentucky Bar; J.D. 2024, Georgetown University Law Center; BA English and BA History, Tulane University. I would like to thank my supervisors at Appalachian Citizens' Law Center, who have been supportive of my work for many years. Finally, I would like to publish this piece in memory of my grandfather, Michael Dale Johnson J.D. He was saved from his own home as a small child during flooding in Eastern Kentucky, and fiercely supported my legal education being put to use in service of our communities. He would be proud.

[1] Gabe Cohen, Trump Says He Plans to Phase Out FEMA After 2025 Hurricane Season, CNN (June 11, 2025, 9:11 PM), https://www.cnn.com/2025/06/11/politics/fema-hurricane-season-phase-out-trump [https://perma.cc/23SV-UHPX].

[2] Id.

[3] Exec. Order No. 14,239, 90 Fed. Reg. 13267 (Mar. 18, 2025).

[4] Natalie Daher, Trump’s FEMA Risks “Flying Blind” Into Hurricane Season, Axios (May 21, 2025), https://www.axios.com/2025/05/21/trump-fema-hurricane-season-disasters [https://perma.cc/A2TP-6TRK]; Ella Nilsen, Everyone Agrees FEMA Needs to Change. The Question is How, CNN (Jan. 25, 2025 4:01 AM), https://www.cnn.com/2025/01/25/climate/trump-fema-overhaul [https://perma.cc/6QFU-P264].

[5] Cohen, supra note 1.

[6] Galen Bacharier, FEMA Will Stop Matching 100% of Helene Recovery Money in North Carolina, NC Newsline (Apr. 12, 2025, 7:00 AM), https://ncnewsline.com/2025/04/12/fema-will-stop-matching-100-of-helene-recovery-money-in-nc-stein-says/ [https://perma.cc/5P77-RMYS].

[7] Exec. Order No. 14,180, 90 Fed. Reg. 8743 (Jan. 24, 2025).

[8] Gabe Cohen, FEMA Head Told Staff He Was Previously Unaware US Has a Hurricane Season, CNN (June 3, 2025, 12:08 AM), https://www.cnn.com/2025/06/02/politics/david-richardson-fema-head-unaware-hurricane-season [https://perma.cc/5SS5-U7X6].

[9] Id.

[10] Notice of the Establishment of the Federal Emergency Management Agency Review Council, 90 Fed. Reg. 11, 123 (Feb. 21, 2025).

[11] Request for Public Input on Experiences with FEMA Disaster Responses, 90 Fed. Reg. 13771 (Mar. 26, 2025).

[12] Exec. Order No. 14,239, 90 Fed. Reg. 13267 (Mar. 21, 2025).

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17]FEMA Ends Wasteful, Politicized Grant Program, Returning Agency to Core Mission of Helping Americans Recovering from Natural Disasters, Fed. Emergency Mgmt. Agency (Apr. 4, 2025), https://www.fema.gov/press-release/20250404/fema-ends-wasteful-politicized-grant-program-returning-agency-core-mission [https://perma.cc/7X7C-QVGW].

[18] FEMA Ends Building Resilient Infrastructure and Communities Program, Am. Soc'y of Civ. Eng’r (Apr. 24, 2025), https://infrastructurereportcard.org/fema-ends-bric-program/ [https://perma.cc/4ZM7-LXRT].

[19] Id.

[20] Arkansas To Appeal Federal Denial for Individual Assistance for March 14 Storm System, Ark. Dep’t Pub. Safety (Apr. 15, 2025), https://dps.arkansas.gov/news/arkansas-to-appeal-federal-denial-for-individual-assistance-for-march-14-storm-system/ [https://perma.cc/TE8W-2ZVW]; Leann Ray, FEMA's Refusal to Help Some West Virginia Counties Just a Taste of What's to Come, W. VA. Watch (Apr. 29, 2025, 5:55 AM), https://westvirginiawatch.com/2025/04/29/femas-refusal-to-help-some-west-virginia-counties-just-a-taste-of-whats-to-come/ [https://perma.cc/KLM8-Q9YE]; Alex Brown, Trump Denies Disaster Aid, Tells States to Do More, Ass’n State Floodplain Managers (May 2, 2025), https://www.floods.org/news-views/fema-news/trump-denies-disaster-aid-tells-states-to-do-more/ [https://perma.cc/4QDR-23Y7].

[21] Brown, supra note 20.

[22] Id.

[23] FEMA: A Comprehensive History of U.S. Emergency Management, EMS1 (Jan. 27, 2025), https://www.ems1.com/emergency-management/fema-a-comprehensive-history-of-u-s-emergency-management [https://perma.cc/3FVR-BHPV].

[24] Bacharier, supra note 6.

[25] See Ben Humphries, Hurricane Helene Recovery Hearing Highlights Delays, Uncertainty in Federal Aid, EDNC (Sept. 25. 2025), https://www.ednc.org/09-25-2025-hurricane-helene-recovery-hearing-highlights-delays-uncertainty-in-federal-aid/#:~:text=As%20the%20recovery%20effort%20continues,it's%20coming%20down%20too%20slowly [https://perma.cc/N93B-2DCW].

[26] Chris Teale, Trump Order Put States at the Forefront of Cyber and Natural Disaster Response, Gov’t Exec. (Mar. 21, 2025), https://www.govexec.com/management/2025/03/trump-order-put-states-forefront-cyber-and-natural-disaster-response/403961/#:~:text=The%20executive%20order%20signed%20this,rather%20than%20the%20federal%20government.&text=President%20Donald%20Trump%20earlier%20this,for%20cybersecurity%2C%20election%20info%20sharing?&text=Could%20states'%20cyber%20get%20trickier%20under%20a%20Trump%20administration? [https://perma.cc/QCA5-CE47].

[27] Adam B. Smith, 2024: An Active Year of U.S. Billion-Dollar Weather and Climate Disasters, NOAA Climate.gov (Jan. 10, 2025), https://www.climate.gov/news-features/blogs/beyond-data/2024-active-year-us-billion-dollar-weather-and-climate-disasters [https://perma.cc/W6EU-CFFN].

[28] Id.

[29] Historic Disasters, Fed. Emergency Mgmt. Agency (Feb. 27, 2025), https://www.fema.gov/disaster/historic [https://perma.cc/G2AW-YFQJ].

[30] Ming Xie, If FEMA Didn't Exist, Could States Handle the Disaster Response Alone?, Univ. Md. Balt. Cnty. (Feb. 10, 2025), https://umbc.edu/stories/if-fema-didnt-exist-could-states-handle-the-disaster-response-alone/ [https://perma.cc/Z9C5-F6GM]; Alex Brown & Kevin Hardy, Trump Wants States to Handle Disasters Without FEMA. They Say They Can’t., Stateline (Feb. 6, 2025), https://stateline.org/2025/02/06/trump-wants-states-to-handle-disasters-without-fema-they-say-they-cant/#:~:text=State%20officials%20say%20that%20while,a%20disaster%20every%20single%20year.%E2%80%9 [https://perma.cc/W3HK-DD39].

[31] McKenna Horsley, Beshear Says Dismantling FEMA Would Be 'Disastrous' Though Improvements Need to Continue, Ky. Lantern (Feb. 6, 2025), https://www.tribunecourier.com/news/beshear-says-dismantling-fema-would-be-disastrous-though-improvements-need-to-continue/article_24a2bbeb-20ed-5f04-a853-858d7c277ef5.html [https://perma.cc/32PF-PZVW].

[32] Brown, supra note 20.

[33] Nat’l Inst. Bldg. Sci., Natural Hazard Mitigation Saves: 2017 Interim Report, at 1 (2017).

[34] Lauren Sommer, Trump Wants States to Handle Disasters. States Aren't Prepared, Nat’l Pub. Radio (Mar. 21, 2025, 4:08 PM), https://www.npr.org/2025/03/21/nx-s1-5327595/trump-order-fema-states-disaster-response [https://perma.cc/V7MJ-3DYG].

[35] Gazette-Mail Editorial: WV Must Do More Better in Prepping for Emergencies, Charleston Gazette Mail (Nov. 12, 2025), https://www.wvgazettemail.com/opinion/editorial/gazette-mail-editorial-wv-must-do-better-in-prepping-for-emergencies/article_17be393c-634c-47fd-a7de-7bf4ef4639aa.html [https://perma.cc/7UD9-QTGQ]; Chapter IV: Government in West Virginia, W.V. Univ: John Chambers Coll. Bus. and Econ., https://business.wvu.edu/research-outreach/bureau-of-business-and-economic-research/economic-outlook-conferences-and-reports/economic-outlook-reports/west-virginia-economic-outlook-2021-2025/chapter-iv-government-in-west-virginia#:~:text=West%20Virginia%20Government,are%20devoted%20to%20government%20expenditures [https://perma.cc/XND7-2Y36].

[36] Emergency Management Assistance Compact, https://www.emacweb.org/ [https://perma.cc/8VX5-5XE5].

[37] See Fed. Emergency Mgmt. Agency, State and Local Guide (SLG) 101: Guide for All-Hazard Emergency Operations Planning 6-1 (1996).

[38] Bruria Adini, Avishay Goldberg, Robert Cohen, Daniel Laor, & Yaron Bar-Dayan, Evidence-Based Support for the All-Hazards Approach to Emergency Preparedness, 1 Isr. J. Health Pol’y Res. no. 40, 2012, at 1, 1.

[39] Nat’l Aeronautics Space Admin., Risk Informed Decision Making 7, 12 (Apr. 2010), https://ntrs.nasa.gov/api/citations/20100021361/downloads/20100021361.pdf [https://perma.cc/8XAR-77GN] (describing risk-based decision making framework); Exec. Order No. 14,239, supra note 3.

[40] Exec. Order No. 14,239, supra note 3, at § 1.

[41] Fed. Emergency Mgmt. Agency, supra note 37 at iii.

[42] See Peter A. Gregory, Reassessing the Effectiveness of All-Hazards Planning in Emergency Management, 7 Inquiries J. Student Pulse, no. 6, 2015, at 1.

[43] Id.

[44] Theo Rosen, There Were 27 Major Climate-Related Disasters in the U.S. in 2024, Env’t Am. (Jan. 7, 2025), https://environmentamerica.org/center/updates/there-were-27-major-climate-related-disasters-in-the-u-s-in-2024/ [https://perma.cc/6ZJC-JSU3].

[45]  Frances Fragos Townsend, The White House, The Federal Response to Hurricane Katrina: Lessons Learned 66 (2006).

[46] David L. Feinberg, Hurricane Katrina and the Public Health-Based Argument for Greater Federal Involvement in Disaster Preparedness and Response, 13 Va. J. Soc. Pol'y & L. 596, 622–24 (2006).

[47] Id. at 609–10.

[48] Christina Wells, Katrina and the Rhetoric of Federalism, 26 Miss. C. L. Rev. 127 (2007).

[49] U.S. Dep’t of Homeland Sec., National Response Plan: Catastrophic Incident Annex (Dec. 2004), https://www.dco.uscg.mil/Portals/9/CG-5R/nsarc/Catastrophic_Incident_Annex.pdf [https://perma.cc/2XFK-6QA9].

[50] Wells, supra note 48, at 140.

[51] Id.

[52] Exec. Order No. 14,239, supra note 3.

[53] McKenna Horsley, Some Kentucky Republicans Echo Trump's Complaints About FEMA After Latest Flood, Ky. Lantern (Feb. 19, 2025, 9:49 AM), https://kentuckylantern.com/2025/02/19/some-kentucky-republicans-echo-trumps-complaints-about-fema-after-latest-flood/ [https://perma.cc/W6QD-E9EX].

[54] Liam Niemeyer, Kentucky Legislature Sends State Budget Bill to Governor, Including Billions in One-Time Spending, Ky. Lantern (Mar. 29, 2024, 1:51 AM), https://kentuckylantern.com/2024/03/29/kentucky-legislature-sends-state-budget-bills-to-governor-including-billions-in-one-time-spending/ [https://perma.cc/6XHW-QF6Y].

[55] Disasters and Other Declarations, Fed. Emergency Mgmt. Agency, https://www.fema.gov/disaster/declarations?field_dv2_declaration_date_value%5Bmin%5D=2020&field_dv2_declaration_date_value%5Bmax%5D=2025&field_dv2_declaration_type_value=DR&field_dv2_incident_type_target_id_selective=All&field_dv2_state_territory_tribal_value%5B0%5D=KY&page=0 [https://perma.cc/R33M-TUTX].

[56] Associated Press, Kentucky and Vermont Top List for Highest Number of Declared Disaster Areas, Spectrum News 1 (July 23, 2024, 11:57 AM), https://spectrumnews1.com/ky/louisville/news/2024/07/23/inland-counties-top-disaster-list [https://perma.cc/Z8CR-K8H9].

[57] Virtual Meeting with Eddie Jacobs, Department of Local Government (Feb. 11, 2025) (on file with author).

[58] Commonwealth and FEMA Flood Recovery on Course One Year Later, Fed. Emergency Mgmt. Agency (Jan. 22, 2025), https://www.fema.gov/press-release/20250122/commonwealth-and-fema-flood-recovery-course-one-year-later [https://perma.cc/4NBE-AC6K].

[59] Id.

[60] Horsley, supra note 31.

[61] Casey Tolan, 'We Thought We Were Safe': Kentucky Disaster Shows How US Is Ill-Prepared and Under-Insured for Devastating Floods, CNN (Aug. 15, 2022, 7:38 AM), https://www.cnn.com/2022/08/15/us/fema-kentucky-flood-insurance-climate-change-invs/index.html [https://perma.cc/F4UE-QMZU]; Claire Carlson & Anya Petrone Slepyan, In the Face of Extreme Flooding, Rural Kentucky Lacked Forecasting and Broadband, Daily Yonder (Mar. 23, 2023), https://dailyyonder.com/rural-kentucky-floods-lack-of-forecasting-broadband/2023/03/23/ [https://perma.cc/HEW3-KSCL].

[62] DR-4663-KY Initial Notice, Fed. Emergency Mgmt. Agency (July 29, 2022), https://www.fema.gov/disaster-federal-register-notice/dr-4663-ky-initial-notice [https://perma.cc/VCD2-VLA6].

[63] Six Months and $154.6 Million Later, Eastern Kentucky Recovery Continues, Fed. Emergency Mgmt. Agency (Jan. 27, 2023) https://www.fema.gov/press-release/20250121/six-months-and-1546-million-later-eastern-kentucky-recovery-continues [https://perma.cc/CB4Z-6JMW].

[64] Id.

[65] Commonwealth and FEMA Flood Recovery on Course One Year Later, supra note 53; Six Months and $154.6 Million Later, Eastern Kentucky Recovery Continues, supra note 59.