“A superpredator is a young juvenile criminal who is so impulsive, so remorseless, that he can kill, rape, maim, without giving it a second thought.”[1] Or so John J. DiIulio Jr., a Princeton professor and criminologist, thought. The superpredator myth DiIulio sparked had lasting impacts on the juvenile justice system. Had DiIulio looked to other sources, like lead paint, mass incarceration of juveniles could have been prevented.
Understanding the juvenile brain is key to understanding how lead impacts it. The United States Supreme Court even recognizes the differences in youth brain development and criminal culpability.[2] And if an outside force impacts that development, harms can occur imminently or down the road. Research indicates many individuals who are abused early in life turn to criminality in adolescence.[3] Factors in a child’s environment impact their wellbeing—from family structure to toxins, like lead.
As the areas within the brain expand, their functions to the child develop as well. The amygdala, part of the limbic system, develops first within juvenile brains.[4] This area is “responsible for immediate reactions including fear and aggressive behavior.”[5] The limbic system’s hippocampus development aids in memory and cognitive function.[6] The anterior cingulate cortex (ACC) provides error processing, conflict monitoring, response selection, and avoidance learning.[7] The ACC communicates error information from the inferior frontal cortex to motor areas, and the motor areas communicate behavioral plans back to the cortex.[8] The prefrontal cortex develops later. The prefrontal cortex holds the decision-making and impulse control functions, but because this develops later, juveniles notoriously lack impulse control.[9]
Lead exposure deteriorates crucial parts of the brain during development, like the prefrontal cortex, ACC, and amygdala. According to the World Health Organization, youth are “particularly vulnerable” to lead’s effects and may suffer “permanent adverse health impacts.”[10] Likewise, lead exposure impacts the ACC by decreasing its volume.[11] Lead attacks the ACC and reduces frontal gray matter, leading to difficulties with mood regulation and decision making.[12] Lead exposure impairs the amygdala and suggests a long lasting but not totally irreversible effect of early exposure.[13] Researchers used rats split them into two groups: a group experimentally exposed to lead and a group never exposed.[14] The study found that permanent and maternal lead exposure caused three results.[15] First, lead exposure had no effect on locomotor activity. Second, lead exposure impaired the acquisition phase of the radial maze. Third, lead exposure impaired passive avoidance in the brain.[16] Further research on rats demonstrates how even low levels of lead destructs important memory functions within the hippocampus.[17]
In the 1960s to 80s, lead paint exposed youth to these development abnormalities, and those youth grew into teenagers during the era of increased criminality rates. Lead impacted the United States during the 1900s. In the 1920s, the vehicle industry added lead to gas to aid in vehicle efficiency. In the 1960s and 1970s, manufacturers utilized lead in paint and petroleum gas.[18] Likewise, individuals in lead-painted homes and around car exhaust were susceptible to lead’s dangerous effects. Lead can still be found in various products, like ceramic glazes, jewelry, toys, lead crystal glassware, and ammunition, but countries began to phase it out in the 1970s.[19] Blood tests in the 1970s showed high blood-lead levels across the country, which led to the Lead-Based Paint Poisoning Prevention Act of 1971.[20] The Centers for Disease Control established the Childhood Lead Poisoning Program to combat exposure.[21] Children received chelation therapy to treat severe lead poisoning when their blood-lead levels were greater than 70 micrograms per deciliter (µg/dL).[22] Even though lead use in paints ended, the damage had already been done, and the impacts marinated in youth exposed over the subsequent decades.
By the 1980s and 1990s, lead use phased out, but crime rates sprung up.[23] Young adults had the highest homicide victimization and offending rates during the late 1980s and 1990s.[24] Teen offending rates (14 to 17 years old) and young adults (18 to 24 years old) increased dramatically in the late 1980s while older age group rates declined.[25] 1993 peaked criminal homicide behavior, but since then, the young adult category declined to 24.6 offenders per 100,000 by 2008.[26]
Research already shows how lead affects the brain, but criminologists have conducted studies highlighting the criminality correlation. A long-term study from Cincinnati Children’s Research Horizons connected criminal behavior in adulthood and brain damage from childhood lead exposure.[27] Lead exposure deteriorated important areas in individuals’ brains, such as regions responsible for “cognition, decision making, impulse control, socially driven behaviors, emotional regulation, and risky behaviors.”[28] The study followed women, who were children in inner cities between 1979 to 1984, throughout their lives. 78% of the lead-impacted youth were later arrested for crimes.[29] Adults suffered deficiencies in social behaviors, executive functions, and cognition when lead exposure decreased their brains’ volumes.[30] A unique 2016 study showed that 20th century cities utilizing lead water pipes had 14–36% higher murder rates compared to cities using iron pipes over a twenty-year span.[31]
Additionally, lead decreased gray matter more so in men than in women.[32] In subsequent studies, researchers performed high resolution volumetric magnetic resonance imaging on 157 adults around the age of 20 who were exposed to lead in youth.[33] Results showed that adults exposed later in childhood to lead had greater loss in gray matter.[34] Male frontal lobes deteriorated more significantly, and the study found that blood lead levels do not fully capture gray matter deterioration.[35] With the deterioration of these crucial developmental functioning areas, criminal behavior significantly increased.[36] Further, research in 2016 from St. Louis determined that lead invokes “violent” behavior over time.[37]
Various ecological studies yield the same results—lead poisoning enables criminal behavior. DiIulio’s narrow-minded approach, however, neglected an entire subsection of what may have led to increased criminality during his time: lead poisoning.
[2]See Roper v. Simmons, 542 U.S. 551 (2005) (abolishing the juvenile death penalty) and Graham v. Florida, 560 U.S. 48 (2010) (abolishing life without parole for juveniles).
[8] CB Holroyd & MGH Coles, The neural basis of human error processing: Reinforcement learning, dopamine, and the error-related negativity, 109 Psychol Rev. 679–709 (2002).
[13] C Munoz, et. al., Neuronal Depletion of the Amygdala Resembles the Learning Deficits Induced by Low Level Lead Exposure in Rats, 11 Neurotoxicol Teratol 257–64 (May–June 1989), https://pubmed.ncbi.nlm.nih.gov/2755422/.
[17] C Munoz, et. al., Significance of Hippocampal Dysfunction in Low Level Lead Exposure of Rats, 10 Neurotoxicol Teratol 245–53 (May–June 1988), https://pubmed.ncbi.nlm.nih.gov/3211103/.
[33] Christopher Brubaker, et. al., The Influence of Age of Lead Exposure on Adult Gray Matter Volume, 31 Neurotoxicology 259–66 (June 2010), https://pubmed.ncbi.nlm.nih.gov/20226811/.
With the rising presence of Artificial Intelligence (AI), many are worried about what the future will look like. Issues arise for many fields, from teachers’ concerns about detecting plagiarism[1] to environmentalists’ concerns about energy consumption[2] to apocalypse enthusiasts’ concerns that robots will revolt against humans. Legal scholars have speculated about what the rise of AI will mean for the legal landscape, many of whom have pessimistic expectations.
These pessimistic views have merit. The lawyer who used cases fabricated by ChatGPT is a flagship example of why we should be hesitant to embrace AI in legal work.[3] This infamous story is an example of a lawyer cutting corners rather than properly utilizing a new research tool. It is synonymous to copying facts directly from Wikipedia without checking their authenticity. AI did not create the notion of professionals cutting corners, it simply provided an easier tool to do so.
Often forgotten, however, is that some of the greatest innovations have come from individuals cutting corners or rather, the desire to make processes easier for the average user. Letters to email, pagers to cellphones, and cassette tapes to Spotify are all are innovations made with the availability of better technology to make the user experience easier rather than sticking with the status quo.
Speaking of technology, at the beginning of each invention, there have been groups fearful of their implementation. The inventions of electricity, elevators, and automobiles have each faced fear and protests at their introduction.[4] But, as their use became widespread, trust was built with the general public, and they have become staples in our daily lives. AI is no different. AI poses its own set of challenges, as mentioned above, but the solution is to meet those challenges head on rather than to avoid AI use altogether.
AI has a unique potential to aid the legal field and possibly even make it more accessible to non-lawyers. Along with other capabilities, AI tools (like ChatGPT) “use supervised machine learning techniques to predict the most logical sequence of textual output based on prior conversations and information available on the free internet.”[5] In terms of research, AI tools provide a more Google-like experience[6] as opposed to the more traditional research method of searching key terms with connector words.[7]
AI search tools could revolutionize legal research for lawyers and non-lawyers alike. Unlike other fields of research, which rely on Google or Google Scholar and their natural language processing functionality, the legal field revolves around the Lexis and Westlaw search databases. Both are heavily reliant on key term and connector word searching methods. First-year law students around the country spend an entire class (multiple classes for some schools) learning how to navigate these databases to find statutes, cases, and secondary sources relevant to their topic.
Lexis has recently incorporated AI functionality that “generates responses based on the company’s huge (and growing) repository of primary law, secondary sources, Practical Guidance, constitutions and court rules, and more, providing a list of sources for attorneys to review in detail.”[8] This feature incorporates natural language processing to legal research, bringing fears of AI providing inaccurate information like that used in the ChatGPT lawyer’s brief. This is a valid fear but relates to use of the tool rather than its existence.
While lawyers should not rely on Lexis AI to interpret the law, there is no reason why lawyers should not use the tool to locate relevant cases that they then read and interpret themselves. Rather than spending hours fighting with the database to locate relevant cases, lawyers can use their valuable time and skills to apply the research to their individual circumstances. As databases refine tools like this, AI search tools could significantly streamline legal research and cut down on costs for clients.
Lawyers could also use AI to suggest ways to rewrite their analysis in a more accessible way for non-lawyers. To illustrate this concept, the following paragraph was written by ChatGPT to explain every first-year law students most hated torts topic–negligence:[9]
Negligence is when someone doesn’t act as carefully as they should in a situation where a reasonable person would be more careful. It can happen by doing something careless or by not doing something they should have. To prove negligence in court, five things usually need to be shown: the person had a duty to be careful, they didn’t follow that duty, someone was hurt, the person’s actions caused the harm, and the harm wouldn’t have happened without those actions. Courts think about how likely the harm was, how bad it could be, and how easy it would have been to prevent. Harm usually means physical injury or damage to property, though some places also include emotional harm. Proximate cause means the harm was a clear and expected result of the person’s actions. Cause-in-fact means the harm wouldn’t have happened if the person had acted differently. If the person who got hurt was also being unsafe, or something else caused the harm, it could change how much the careless person is responsible.[10]
Lawyers often fail at translating complex legal concepts into a language that the average person can understand, which is unfortunate considering that the average person is who lawyers usually represent. Lawyers can utilize AI tools in a similar form to help translate their research to a format to share with clients. Alternatively, the general public could use this functionality to rewrite legal information in a way they can personally understand based on their education level. Additionally, the Lexis and Westlaw databases are kept behind paywalls and are inaccessible to the average person. The general public can use AI to research and better understand their legal rights at a free or greatly discounted rate than they would pay consulting a lawyer.
Regardless of AI’s assistance, lawyers still need to learn how to do legal research, writing, and client communication. It is not enough to rely on AI search functions, nor is it anywhere close to ethical to have AI wholly write legal documents. Such learning is necessary for law students and lawyers but wholly outside the realm of almost every other professional field.
Overall, it is important that society learns to work with AI because, as with other technological advancements, it is impossible to put the toothpaste back in the tube. Beyond just understanding, the legal field has a unique opportunity to utilize AI tools to make our historically gatekept field more accessible. We are at the forefront of this transition and should incorporate the new capabilities in an informed, not hesitant, way.
[9] I prompted ChatGPT, asking it to “Please rewrite the following information into a concise paragraph written at a fifth grade reading level” and copy and pasted Cornell Law School’s Legal Information Institutes entire page on negligence. Legal Information Institute, Negligence, Cornell L. Sch., https://www.law.cornell.edu/wex/negligence (last visited Mar. 22, 2025).
[10] OpenAI, Negligence Described at a Fifth-Grade Reading Level, ChatGPT, https://chat.openai.com/ (responding to prompt described in previous footnote).
Imagine the frustration you would feel if you opened your computer every day, tried to log onto a website, and were unable to use it. Now imagine the frustration you would feel if the reason you could not use the website was due to a disability you had and could not prevent. Would it make you angry if abled-bodied individuals could actively browse the same website you were excluded from, and there was little recourse to fix it?
In 1990, Congress enacted the Americans with Disabilities Act (ADA). The ADA is a federal law intended to curb discrimination against individuals with disabilities.[1] Title III of the Act prohibits discrimination in places of public accommodations. Because the Act does not mention websites within its list of “public accommodations,” the Federal circuit courts are left to interpret this Act when a case is within its Jurisdiction and specifically pertains to websites. As such, a circuit split has evolved regarding this issue presently: whether a website should be considered a place of public accommodation under the Act.
With little guidance from Congress as to whether websites should be considered a place of public accommodation subject to ADA regulations, several of the circuit courts have aligned with one another. The Seventh Circuit and First Circuit agree that the ADA does not limit public accommodations to physical structures.[2] On the contrary, the Third, Sixth, and Ninth Circuits agree that websites are limited to physical structures, and there must be a nexus of a physical location to determine that a website is a public accommodation.[3]
The best solution to this issue would be for Congress to clarify in the Act’s text and define whether all websites are places of public accommodation. Moreover, this blog argues that all websites should be categorized as places of public accommodation and subject to ADA regulations. This suggestion follows from the surge in technological advancement, specifically since the ADA was enacted.[4] The technological advancements within the last decade have proven that websites are used by all individuals in society. Another solution to resolving the federal circuit court split would be for the Supreme Court to grant certiorari for a case that involves this issue. The Supreme Court did have a chance to settle this issue in Acheson Hotels; however, the Court ultimately dismissed the case as moot.[5] Lastly, a final solution to resolving the federal circuit split would be to resolve the circuit split: specifically, the Circuit Courts can begin to apply the same approach to attack this issue–so that plaintiffs can expect a similar judicial approach to federal law.
Should the Circuit Courts agree on an approach, the Seventh and First Circuits approach should be used: there is a presumption that the ADA does not limit public accommodations to physical structures.[6] The Seventh and First Circuit’s analysis considers the effects technology has had on accessibility for the public at large, and especially for individuals with disabilities. The Seventh and First Circuits purposivism type approach will no longer allow individuals with disabilities to be excluded from the digital world in violation of the ADA. It accounts for the legitimate offerings in the digital world that individuals with disabilities should be entitled to access like able-bodied individuals. The Seventh and First Circuits recognize the ADA’s purpose– to stop discrimination against individuals with disabilities in general.
This circuit split has been shown to create differing results for Plaintiffs in similar circumstances seeking relief under the same Federal law. Individuals with disabilities will not be afforded the same or equal protection under the law as abled-bodied individuals until Congress amends the legislative text of the ADA, the Supreme Court makes a final ruling on how this issue should be resolved, or the Circuit Courts all begin analyzing website accessibility cases using the same analysis.
[1]A Brief History of the Disability Rights Movement, ADL (Mar. 5, 2017), https://www.adl.org/resources/backgrounder/brief-history-disability-rights-movement.
[2] Morgan v. Joint Admin. Bd., 268 F.3d 456, 459 (7th Cir. 2001); Carparts Distrib. Ctr. v. Auto. Wholesaler’s Ass’n, 37 F.3d 12, 19 (1st Cir. 1994).
[3] Herrera v. Humana, Inc., No. 23-11948 (MEF)(AME), 2024 U.S. Dist. Lexis 146411, at *4 (N.J. Aug. 15, 2024) (citing Menkowitz v. Pottstown Mem’l Med. Ctr., 154 F.3d 113 (3rd Cir. 1998)); Peoples v. Discover Fin. Servs., 387 F. App’x 179 (3rd Cir. 2010); Parker v. Metro. Life Ins. Co., 121 F.3d 1006 (6th Cir. 1997); Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 905 (9th Cir. 2019).
[4] Susannah Fox & Lee Rainie, Part I: How the internet had woven itself into American Life, Pew Rsch. Ctr. (Feb. 27, 2014), https://www.pewresearch.org/internet/2014/02/27/part-1-how-the-internet-has-woven-itself-into-american-life/.
[5] Acheson Hotels, LLC v. Laufer, 601 U.S. 1 (2023).
[6] William Goren, Absent a Gateway to a Physical Place, is an Internet Site Subject to Title III of the ADA: The View From Both Sides of the Argument, Understanding the ADA (Oct. 18, 2023), https://www.understandingtheada.com/blog/2023/10/18/absent-a-gateway-to-a-physical-place-is-an-internet-site-subject-to-title-iii-of-the-ada/.
Every year, as millions tune in to watch the Super Bowl Halftime Show, broadcasters face a complex challenge: navigating the Federal Communications Commission’s (FCC) content regulations while preserving artistic expression. This tension between regulation and creative freedom raises important questions about free speech, cultural expression, and the evolving nature of what society considers “offensive” content.
This year was no different as many wondered how Kendrick Lamar would approach this challenge. Many anticipated that he would perform his popular song “Not Like Us,”[1] and why shouldn’t he? “Not Like Us” was one of last year’s breakout hits, earning over one billion streams on Spotify and five Grammy Awards, including song of the year.[2] But out of the songs 919 words, roughly 38 likely would raise concerns in dealing with the FCC.[3]
To understand this challenge, we must first examine the legal framework. The FCC employs three distinct categories of regulated content: obscenity, indecency, and profanity.[4] Each category carries its own definition and legal standard, creating a complex web of guidelines that broadcasters must navigate.
Obscenity represents the most clearly defined category. The Supreme Court established a three-pronged test in Miller v. California: content must appeal to the average person’s prurient interest, depict or describe sexual conduct in a “patently offensive” way, and lack serious literary, artistic, political, or scientific value.[5] Because obscenity falls outside First Amendment protection, it’s prohibited across all broadcast platforms.[6] However, musical performances rarely trigger obscenity concerns.
Indecency and profanity present more nuanced challenges. The FCC defines indecent content as material that portrays sexual or excretory activities in a patently offensive manner but doesn’t meet the obscenity threshold.[7] The FCC evaluates indecency through contemporary community standards, a metric that inherently shifts with societal values.[8] The infamous “wardrobe malfunction” during Janet Jackson and Justin Timberlake’s 2004 Super Bowl performance exemplifies this category, generating over 540,000 complaints and resulting in FCC fines for CBS stations (though these fines were later overturned).[9]
Profanity occupies perhaps the most ambiguous territory. The FCC characterizes it as “grossly offensive” language that constitutes a public nuisance.[10] This definition encompasses the “seven dirty words” identified in FCC v. Pacifica Foundation, but extends to other terms on a case-by-case basis.[11] This flexibility creates significant uncertainty for broadcasters and performers.
The challenge of these regulations becomes apparent when we consider their inconsistent application. For instance, the FCC deemed rock star Bono’s use of “fuck” at the Golden Globes as indecent[12], while the same word in Steven Spielberg’s “Saving Private Ryan” was permitted due to its historical and social context.[13] This disparity raises questions about fairness and artistic freedom.
These concerns are particularly relevant in hip-hop, where language serves as a powerful tool for cultural expression and social commentary. As Joycelyn Wilson, a hip-hop studies professor at Georgia Tech, notes, “hip-hop’s language is intentional, whether poetic, confrontational or coded.” This artistic intention deserves the same contextual consideration given to other forms of expression.
The Supreme Court’s decision in Cohenv.California offers important perspective on regulating offensive speech. The Court emphasized that states cannot “cleanse public debate to the point where it is grammatically palatable to the most squeamish among us.”[14] This principle becomes increasingly relevant as society’s relationship with language evolves. In an era where the President of the United States discusses grabbing women by the “pussy”[15] and refers to some countries as “shitholes,”[16] the FCC’s approach to profanity regulation may need reconsideration.
The current regulatory framework presents several problems. First, its case-by-case approach to profanity leaves broadcasters and artists without clear guidelines. Second, the fluid nature of what society considers offensive makes consistent enforcement challenging. As Cohen wisely noted, “one man’s vulgarity is another’s lyric” – a maxim that resonates even more strongly in today’s diverse media landscape.[17]
This vagueness creates real consequences. Broadcasters, fearing FCC fines, often pressure artists to self-censor, potentially diminishing their cultural and social impact. During Kendrick Lamar’s 13-minute Halftime show, he performed eleven songs that spanned his career. Of those eleven songs, Lamar censored every single one in some way. Whether it was not rapping the iconic line of “Bitch, sit down, be humble” from “HUMBLE.”[18] or changing the lyrics in “Not Like Us” to remove phrases like “you not a colleague, you a fuckin’ colonizer.”[19] The sanitized version lost the raw power of the original critique. While this approach makes business sense, it raises concerns about artistic integrity and the role of controversial expression in public discourse.
The solution may lie in reconsidering how we regulate broadcast content in the modern era. Rather than relying on subjective standards of offensiveness, perhaps we need a more nuanced approach that considers context, artistic merit, and evolving social norms. This would better serve both broadcasters seeking clear guidelines and artists striving to make meaningful cultural contributions.
As we continue to grapple with these issues, one thing remains clear: the balance between regulation and artistic expression requires careful consideration. While the FCC’s mission to protect public airwaves is important, it must be weighed against the vital role of artistic expression in our cultural dialogue. Finding this balance may require us to embrace some discomfort, recognizing that meaningful artistic expression sometimes challenges our sensibilities – and that’s not necessarily a bad thing.
[1] Kendrick Lamar, Not Like Us, (Interscope Records 2024).
[2] Janeé Bolden, Kendrick Lamar Dominated Grammys With “Not Like Us,” Cementing His Place as West Coast Royalty, The Hollywood Reporter (Feb. 3, 2025) https://www.hollywoodreporter.com/news/music-news/kendrick-lamar-dominated-grammys-not-like-us-1236125989/.
[3] Artur Galocha, You cannot say that in the $%@! Super Bowl Halftime show!, Wash. Post (Feb. 8, 2025) https://www.washingtonpost.com/style/2025/02/08/super-bowl-halftime-show-lyrics-profanity-kendrick-lamar/.
[9] FCC v. CBS Corp. (11-1240). Seealso, Artur Galocha, You cannot say that in the $%@! Super Bowl Halftime show!, Wash. Post (Feb. 8, 2025) https://www.washingtonpost.com/style/2025/02/08/super-bowl-halftime-show-lyrics-profanity-kendrick-lamar/.
[13] Artur Galocha, You cannot say that in the $%@! Super Bowl Halftime show!, Wash. Post (Feb. 8, 2025) https://www.washingtonpost.com/style/2025/02/08/super-bowl-halftime-show-lyrics-profanity-kendrick-lamar/.
[15] Alexander Burns et al., Donald Trump Apology Caps Day of Outrage Over Lewd Tape, N.Y. TIMES, (Oct. 7, 2016), https://www.nytimes.com/2016/10/08/us/politics/donald-trump-women.html.
[16] John Hendel, Trump ‘Shithole’ Coverage Prompted More Than 160 Indecency Complaints, POLITICO (Apr. 3, 2018), https://www.politico.com/story/2018/04/03/trump-shithole-media-coverageindecency-complaints-454928.
Your daily morning routine might be worth skipping. The average adult uses nine personal care products a day, risking exposure to 126 different chemical ingredients. [1] Many of these chemicals are carcinogens.[2] Unsurprisingly, women are at a higher risk of being exposed to more carcinogenic chemicals in their everyday beauty products.[3] Why are toxic chemicals used in beauty products? Because they are cheaper for the company.[4]
The rampant use of toxic chemicals in cosmetics is the result of cosmetic products being largely unregulated by the Food and Drug Administration (FDA). Cosmetics remained the least regulated category within the FDA for many decades. [5] Theorists have suggested that this lack of regulation is due to misogynistic ideals about cosmetics and their association with femininity.[6] Additionally, examining this lack of regulation through an intersectional lens uncovers a disparate impact on women of color.[7] Cosmetic industries market heavily toward communities of color while pushing beauty norms centered around white beauty standards.[8] This results in women of color being at a higher risk of being exposed to unregulated and harmful cosmetic products.[9] Cosmetic regulation will play a key role in addressing these disparities and associated human health concerns.
In 1938, the first law that regulated cosmetics in the United States, the Federal Food, Drug, and Cosmetic Act, was passed.[10] Efforts to reform cosmetic safety have been met with pushback from industry players.[11] In 2022, the Modernization of Cosmetics Regulation Act was enacted.[12] This act aimed to improve the safety of cosmetics through heightened regulation of cosmetic producers. MOCRA includes requirements for facility registration, adverse effects reporting, mandatory recalls, product ingredient labeling and safety substantiation. [13] Despite these new requirements, MOCRA fails to address the issue of unsafe cosmetics in the industry.
Under MOCRA, cosmetic producers must adhere to safety substantiations. MOCRA requires that cosmetic producers conform to “adequate substantiation of safety” regarding their products.”[14] “Adequate substantiation of safety” is defined as conducting tests or studies that produce a “reasonable certainty” that the product is safe.[15] Further, “safe” only encompasses “customary or usual” uses of the product.[16] MOCRA does not set forth specific tests used to determine if a product is safe.[17] Moreover, MOCRA holds cosmetic producers to a weak standard to prove product safety. This allows cosmetic producers to downplay the risks of certain chemical ingredients.[18]
MOCRA requires product ingredient labeling but fails to address the bigger issue of what ingredients are actually being used. The United States currently has only 11 prohibited cosmetic ingredients.[19] In comparison, the European Union has banned more than 1,300.[20] The United States takes a reactionary approach by only banning ingredients proven to be harmful to human health.[21] The European Union takes a proactive approach by banning ingredients that might be harmful.[22] MOCRA’s product labeling requirement is largely performative in light of many toxic chemicals still being frequently used in products. Only requiring product labeling allows cosmetic producers to continue putting harmful ingredients in cosmetics under the guise of transparency.
Adding fuel to the fire, recent efforts by the Trump administration to cut federal funding puts acts like MOCRA in jeopardy.[23] States have taken measures into their own hands and enacted laws banning harmful ingredients from cosmetics including polyfluoroalkyl substances, also called forever chemicals.[24] These efforts to remove toxic chemicals from cosmetics are promising. However, improvement is still needed to have truly safe cosmetics.
The failure to properly regulate the cosmetics industry is the result of bad legislation and a disregard for women and minorities.[25] The common use of toxic chemicals in cosmetics is a serious health issue affecting many people.[26] The FDA needs to start taking a more proactive approach to regulating and banning toxic chemicals in cosmetics. Additionally, cosmetic producers need to start prioritizing consumer health over capitalistic greed.
[1] Exposures add up – Survey results, Env’t Working Grp. (Dec. 15, 2004), https://www.ewg.org/news-insights/news/2004/12/exposures-add-survey-results.
[2] Exposures add up – Survey results, Env’t Working Grp. (Dec. 15, 2004), https://www.ewg.org/news-insights/news/2004/12/exposures-add-survey-results.
[3] Exposures add up – Survey results, Env’t Working Grp. (Dec. 15, 2004), https://www.ewg.org/news-insights/news/2004/12/exposures-add-survey-results.
[4] Toxic Chemicals in Personal Care Products: The Need for the Toxic Free Beauty Act, Campaign for Safe Cosmetics (Aprl. 9, 2022), https://www.safecosmetics.org/blog/toxic-chemicals-in-personal-care-products-the-need-for-the-toxic-free-beauty-act/#:~:text=Why%20Are%20Harmful%20Chemicals%20Still,Free%20Beauty%20Act%20of%202021!
[5] Colleen Campbell, Intersectionality Matters in Food and Drug Law, 95 U. Colo. L. Rev. 1, 4 (2024).
[6] Colleen Campbell, Intersectionality Matters in Food and Drug Law, 95 U. Colo. L. Rev. 1, 4 (2024).
[7] Colleen Campbell, Intersectionality Matters in Food and Drug Law, 95 U. Colo. L. Rev. 1, 6 (2024).
[8] Colleen Campbell, Intersectionality Matters in Food and Drug Law, 95 U. Colo. L. Rev. 1, 6 (2024).
[9] Colleen Campbell, Intersectionality Matters in Food and Drug Law, 95 U. Colo. L. Rev. 1, 6 (2024).
[10] Anh-Thi Le, French-Tipped Formaldehyde: Why FDA’s Statutory Framework Enables Toxic Chemical Exposures in Manicure Products; How Rulemaking or Congressional Action Can Curb Its Detrimental Effect on Occupational Health, 75 Admin L. Rev. 393, 397 (2023).
[11] Anh-Thi Le, French-Tipped Formaldehyde: Why FDA’s Statutory Framework Enables Toxic Chemical Exposures in Manicure Products; How Rulemaking or Congressional Action Can Curb Its Detrimental Effect on Occupational Health, 75 Admin L. Rev. 393, 398 (2023).
[12]Modernization of Cosmetics Regulation Act of 2022 (MoCRA) U.S Food & Drug Admin. (Jan. 17, 2025), https://www.fda.gov/cosmetics/registration-listing-cosmetic-product-facilities-and-products#:~:text=The%20Modernization%20of%20Cosmetics%20Regulation,products%20many%20consumers%20use%20daily.
[13]Modernization of Cosmetics Regulation Act of 2022 (MoCRA) U.S Food & Drug Admin. (Jan. 17, 2025), https://www.fda.gov/cosmetics/registration-listing-cosmetic-product-facilities-andproducts#:~:text=The%20Modernization%20of%20Cosmetics%20Regulation,products%20many%20consumers%20use%20daily.
[17] Anh-Thi Le, French-Tipped Formaldehyde: Why FDA’s Statutory Framework Enables Toxic Chemical Exposures in Manicure Products; How Rulemaking or Congressional Action Can Curb Its Detrimental Effect on Occupational Health, 75 Admin L. Rev. 393, 405 (2023).
[18] Anh-Thi Le, French-Tipped Formaldehyde: Why FDA’s Statutory Framework Enables Toxic Chemical Exposures in Manicure Products; How Rulemaking or Congressional Action Can Curb Its Detrimental Effect on Occupational Health, 75 Admin L. Rev. 393, 405 (2023).
[19]Prohibited & Restricted Ingredients in Cosmetics, U.S Food & Drug Admin. (Feb. 25, 2022), https://www.fda.gov/cosmetics/cosmetics-laws-regulations/prohibited-restricted-ingredients-cosmetics
[20]Differences in cosmetic regulations between the EU and U.S, Pluschem, (Apr. 8, 2023), https://pluschem.com/blog/eu-and-us-cosmetic-regulations/
[21]Differences in cosmetic regulations between the EU and U.S, Pluschem, (Apr. 8, 2023), https://pluschem.com/blog/eu-and-us-cosmetic-regulations/
[22]Differences in cosmetic regulations between the EU and U.S, Pluschem, (Apr. 8, 2023), https://pluschem.com/blog/eu-and-us-cosmetic-regulations/
[23] The Upshot Staff, Which Federal Programs Are Under Scrutiny? The Budget Office Named 2,600 of Them, (Jan. 28, 2025), https://www.nytimes.com/interactive/2025/01/28/upshot/federal-programs-funding-trump-omb.html
[24] Clara Hudson, ‘Forever Chemicals’ Reckoning Hits Cosmetics With New State Laws, Bloomburg L. (Jan. 27, 2025), https://news.bloomberglaw.com/esg/forever-chemicals-reckoning-hits-cosmetics-with-new-state-laws. (Forever chemicals are named as such because they are resistant to breaking down)
[25] Colleen Campbell, Intersectionality Matters in Food and Drug Law, 95 U. Colo. L. Rev. 1, 6 (2024).
[26] Exposures add up – Survey results, Env’t Working Grp. (Dec. 15, 2004), https://www.ewg.org/news-insights/news/2004/12/exposures-add-survey-results.
In May of 2024, the Department of Justice (DOJ) invited public comment on the possibility of rescheduling cannabis.[1] Cannabis is currently a Schedule I drug under the Controlled Substances Act (CSA) and the DOJ has proposed the rescheduling of cannabis as a Schedule III drug under CSA.[2] This shift could have profound legal and regulatory consequences. This change, if implemented, would redefine how cannabis is treated under federal law, affecting criminal justice policies, medical research, taxation, and business operations.
Under the CSA, Schedule I drugs are classified as substances with a high potential for abuse and have no accepted medical use.[3] This classification has historically hindered research and led to severe criminal penalties for cannabis-related offenses.[4] Schedule III, in contrast, includes substances with moderate to low potential for abuse and has accepted medical applications, such as anabolic steroids and certain pain medications.[5]
The rescheduling process itself typically involves recommendations from agencies such as the Drug Enforcement Administration (DEA) and the Food and Drug Administration (FDA), followed by regulatory rulemaking.
Legal and Criminal Justice Implications
In terms of federal prosecution and criminal charges, moving cannabis to Schedule III would likely reduce the severity of federal criminal penalties for cannabis-related offenses.[6] While state laws have varied significantly, federal law under the CSA has continued to impose strict consequences for possession, distribution, and manufacturing of cannabis, such as mandatory sentences.[7] Rescheduling could prompt reforms in sentencing and potentially affect ongoing and past convictions. However, while rescheduling could influence sentencing reforms, it would not automatically expunge past convictions unless Congress enacts additional legislative measures.[8]
Currently, the Schedule I classification has created major barriers to scientific research on cannabis.[9] With a move to Schedule III, researchers would face fewer regulatory hurdles in obtaining cannabis for study than they currently face under a Schedule I designation.[10] This could lead to potential advancements in medical treatments and expanded FDA-approved applications. While Schedule III status reduces restrictions, cannabis would still be a controlled substance, meaning it would be subject to FDA regulations and prescription-based distribution rather than broad adult-use legalization.[11]
A significant impact of rescheduling would be on the cannabis industry’s financial operations.[12] Under Internal Revenue Code Section 280E, businesses dealing with Schedule I and II substances cannot deduct ordinary business expenses for federal tax purposes.[13] If cannabis moves to Schedule III, companies would gain access to tax deductions, improving profitability and reducing financial burdens on legal cannabis enterprises.[14] However, rescheduling might not fully resolve the banking challenges that cannabis businesses face. Many financial institutions remain hesitant to serve the industry due to ongoing federal restrictions.[15]
Even if cannabis is rescheduled, state legalization efforts and federal prohibition may continue to conflict. Some states have fully legalized cannabis for recreational and medical use, while others maintain strict prohibitions.[16] Rescheduling would not equate to full federal legalization but could signal further legislative changes down the line.[17]
A Path Forward
Rescheduling cannabis from Schedule I to Schedule III would mark a significant policy shift with broad implications for the legal system, medical research, taxation, and the cannabis industry. While rescheduling represents progress toward federal and social acceptance, full legalization and reconciliation between state and federal laws remain unresolved. Policymakers, businesses, and legal professionals must navigate these changes carefully to maximize benefits and address lingering challenges.
[4]See The National Academies of Sciences, Engineering, and Medicine, The Health Effects of Cannabis and Cannabinoids: The Current State of Evidence and Recommendations for Research 1 (National Academy of Sciences 2017) (claiming that ongoing restrictive policies on cannabis research have limited studies on its health effects in the U.S., leaving patients, healthcare professionals, and policymakers without the evidence needed to make informed decisions about its use); see, e.g., Martin D. Carcieri, Obama, the Fourteenth Amendment, and the Drug War, 44 Akron L. Rev. 303, 325 (2011) (“U.S. marijuana prohibition has long been motivated largely by racism”); see also Richard J. Bonnie & Charles H. Whitebread, The Forbidden Fruit and the Tree of Knowledge: An Inquiry Into the Legal History of American Marijuana Prohibition, 56 Va. L. Rev. 971, 1011 (1970) (“From a survey of contemporary newspaper and periodical commentary we have concluded that there were three major influences [on states’ decisions to criminalize marijuana]. The most prominent was racial prejudice.”).
[6] Joanna R. Lampe, Cong. Rsch. Serv., LSB11105, Legal Consequences of Rescheduling Marijuana 3 (2024).
[7] Joanna R. Lampe, Cong. Rsch. Serv., LSB11105, Legal Consequences of Rescheduling Marijuana 3 (2024).
[8] Joanna R. Lampe, Cong. Rsch. Serv., LSB11105, Legal Consequences of Rescheduling Marijuana 3 (2024).
[9] Dorothy C. Kafka, Cong. Rsch. Serv., LSB11227, Legal Effect of Marijuana Rescheduling on FDA’s Regulation of Cannabis 2 (2024).
[10]See Lindsay Stafford Mader, The State of Clinical Cannabis Research in the United States, 85 HerbalGram J. Am. Botanical Council 64, 67 (2010), https://www.maps.org/media/herbalgramnidamonopolyfeb2010.pdf (“While more people are able to obtain marijuana for treatment under some states’ laws, little research is being done to document the efficacy and safety of cannabis as a medicine.”)
[11] Dorothy C. Kafka, Cong. Rsch. Serv., LSB11227, Legal Effect of Marijuana Rescheduling on FDA’s Regulation of Cannabis 3 (2024).
[12] Joanna R. Lampe, Cong. Rsch. Serv., LSB11105, Legal Consequences of Rescheduling Marijuana 3 (2024).
On January 20, 2025, President Donald Trump issued an executive order titled “Protecting the Meaning and Value of American Citizenship,” attempting to redefine birthright citizenship. The order seeks to deny automatic U.S. citizenship to children born on U.S. soil if their parents are either undocumented immigrants or temporary visa holders.[1] However, this executive action is blatantly unconstitutional, as it directly contradicts well-established Supreme Court precedent and the clear text of the Fourteenth Amendment.
Despite political rhetoric surrounding birthright citizenship, the law has been settled for over a century. Multiple Supreme Court cases—including United States v. Wong Kim Ark (1898), Yick Wo v. Hopkins (1886), and Plyler v. Doe (1982)—uphold the principle that anyone born in the United States, regardless of their parents’ citizenship or immigration status, is automatically a U.S. citizen.
Trump’s order is already facing legal challenges, and a federal judge has issued a temporary restraining order blocking its enforcement.[2] The courts will inevitably strike it down—the president does not have the power to unilaterally rewrite the Constitution.
The Fourteenth Amendment states in pertinent part: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”[3] Additionally, the Fourteenth Amendment’s Equal Protection Clause states that no State shall “deny to any person within its jurisdiction the equal protection of the laws.”[4] The phrase “subject to the jurisdiction thereof” has been misinterpreted by anti-immigration advocates, but Supreme Court precedent firmly establishes its meaning.
While not a case about citizenship, Yick Wo v. Hopkins established that the Fourteenth Amendment applies to both citizens and noncitizens.[5] The Court struck down a discriminatory San Francisco law on Equal Protection grounds that targeted Chinese immigrants operating laundromats. The Court held that the Fourteenth Amendment “is not confined to the protection of citizens”[6] and that noncitizens are protected under the Equal Protection Clause’s guarantee that “any person” within a state’s jurisdiction shall receive the equal protection of the laws.[7] The Court applied the Fourteenth Amendment broadly, stating that its provisions are “universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality.”[8] It is important to note that this means noncitizens are within a state’s jurisdiction for Fourteenth Amendment purposes.
In United States v. Wong Kim Ark, the Supreme Court explicitly held that children born in the U.S. to noncitizen parents are U.S. citizens.[9] Wong Kim Ark was born in San Francisco to Chinese immigrant parents, and when he was denied reentry to the U.S. after traveling abroad, he challenged the government’s claim that he was not a citizen. The Supreme Court ruled in his favor, stating: “It is impossible to construe the words ‘subject to the jurisdiction thereof’ … as less comprehensive than the words ‘within its jurisdiction’ … or to hold that persons ‘within the jurisdiction’ of one of the states of the Union are not ‘subject to the jurisdiction of the United States.’”[10] In holding that persons “within the jurisdiction” of one of the states are “subject to the jurisdiction of the United States,” the Court in Wong Kim Ark made the Fourteenth Amendment’s birthright citizenship clause applicable to noncitizens.
In Plyler v. Doe (1982), the Supreme Court clarified that the Fourteenth Amendment’s birthright citizenship clause applies to nonresidents residing illegally in the United States.[11] Further, the Court clarified that undocumented immigrants are “within the jurisdiction” of the states where they reside. The case involved a challenge to a Texas law that sought to deny free public education to undocumented children. Texas argued that those who are illegally in the United States are not “within the jurisdiction” of the state.[12] However, the Court ruled against Texas: “Neither our cases nor the logic of the Fourteenth Amendment supports [a] constricting construction of the phrase ‘within its jurisdiction.’”[13] Because undocumented immigrants are considered “within the jurisdiction” of a state, and those who are “within the jurisdiction” of a state are “subject to the jurisdiction of the United States,” the Fourteenth Amendment’s birthright citizenship clause is applicable to undocumented immigrants.
In conclusion, the Fourteenth Amendment’s birthright citizenship clause extends to every person on U.S. soil—even those here illegally. The President cannot overturn the Constitution with an executive order.
[1] Protecting the Meaning and Value of American Citizenship, 90 Fed. Reg. 8449, 8449 (Jan. 20, 2025).
[2] Mike Catalini & Gene Johnson, A federal judge temporarily blocks Trump’s executive order redefining birthright citizenship, AP (Last updated Jan. 23, 2025), https://apnews.com/article/birthright-citizenship-donald-trump-lawsuit-immigration-9ac27b234c854a68a9b9f8c0d6cd8a1c.
The Walt Disney company is no stranger to the intricacies and the process of copyright litigation. In fact, Disney may be widely known as one of the most litigious companies in the modern world. So much so that the fundamental cornerstone of copyright protection today is colloquially known as the Mickey Mouse Protection Act due to Disney’s forceful lobbying for the bill in order to protect the copyright of their seminal character. But that is not to say that Disney has not been subject to the other side of copyright litigation. In fact, considering the number of internationally famous characters that Disney owns the rights to, it is inevitable that there would be multiple claims against them. However, as is typical of the mighty mouse, not many of them come to fruition. In 2017, Denise Daniels filed suit claiming that the concept for the movie Inside Out was stolen from a pilot she produced in the early 2000s and had pitched to Disney in the same years.[1] However, this suit was dismissed by the district courts and then affirmed by the appeals courts in 2020.[2] Some cases are not so easily dismissed, and Disney typically settles those out of court. Most recently this happened in a copyright claim against the movie Frozen in which Kelly Wilson sued claiming that the film stole core creative themes and the character of Olaf from her 2010 short film The Snowman.[3] After losing their motions to dismiss, Disney settled out of court for an undisclosed amount.[4] In 2020, a suit was filed against Disney for allegedly stealing nearly the entirety of the characters, plot, and theme of the movie Moana.[5] This lawsuit was eventually dismissed for failing to be filed in a timely manner after the film’s release.[6] However, following the release of Moana 2, the plaintiff, Buck Woodall, sued Disney again. This time the suit is claiming infringement from the series as a whole and seeks significantly higher damages.[7] Woodall has claimed that the total amount of damages owed to him in this case is around ten billion dollars, one of the largest amounts for a copyright suit ever. However, with Disney’s legendary legal division, it is unclear whether this claim will amount to anything.
For these sorts of copyright cases the plaintiff must prove that she “(1) ‘owns a valid copyright in [the work]’ and (2) Defendants ‘copied protected aspects of [Plaintiff’s work].’”[8] If there is no direct evidence that a defendant copied the work in question it may be proven by unlawful appropriation, which presumes the copying.[9] The second prong can be shown through evidence that the properties are substantially similar and that the infringing property contains protected elements of the plaintiff’s work.[10] The element of substantially similar is proven through a two-part analysis of the intrinsic and extrinsic test.[11] The intrinsic test looks at whether a reasonable observer would find “a substantial similarity of expression of the shared idea.”[12] The extrinsic test analyzes “whether two works share a similarity of ideas and expression based on external, objective criteria.”[13] Finally, the plaintiff must also show that the defendant had access to the work.[14]
Copyright suits often fail at the hurdle of proving access or substantial similarity to the protected work. However, in the original lawsuit by Woodall against the first Moana film, the judge denied Disney’s motions to dismiss based on the substantive grounds of access and substantial similarity.[15] Disney did not dispute the intrinsic element in the first lawsuit. Instead they relied on expert testimony to refute the similarities.[16] The access portion was also quite heavily weighed in Woodall’s favor as there is evidence that Woodall prepared not only a presentation package for Disney via an intermediary but also an animated trailer.[17] The similarity between the protected works in this case seems to extend far beyond the ones in the Frozen case by a vast degree. Instead of one copied character and general themes for a portion of the film, there is evidence to support numerous copied characters and entire plotlines. Although the evidence against Disney seems overwhelming in this case, and it might likely be settled for a large sum, one can never underestimate the power of the mouse
Houselessness, commonly called homelessness, is on the rise in Vermont. Vermont has the second highest per-capita rate of houselessness in the country, behind only California.[2] Houselessness in Vermont increased by 151% from 2020 to 2022, the largest percentage increase of all the states.[3] Mental illness and addiction are the most prevalent challenges faced by people experiencing housing insecurity and houselessness.[4] Vermonters experience higher than average rates of addiction disorder and disability.[5] External factors causing houselessness in Vermont include the rising cost of living, a housing shortage, and natural disasters.[6]
At the onset of the COVID-19 pandemic, Vermont used federal funds to implement the Vermont General Assistance Housing Program, which provided emergency motel housing program for people experiencing houselessness.[7] People who met eligibility requirements could receive vouchers to stay in vacant hotels.[8] As quickly as the summer of 2021, Vermont Governor Phil Scott began phasing out the program in anticipation of the program becoming financially unsustainable once federal funds disappeared.[9]
In July 2024, the Vermont legislature’s Act 133 introduced a cap on the number of rooms and limited residents to an 80 day stay.[10] Is 80 days enough time for someone to save up money from a minimum wage job to afford a security deposit on an apartment, a month’s rent for the apartment, and transportation costs from a new apartment to their job, all while living in a motel and trying to afford exorbitant Vermont food prices? Nevermind for an individual, imagine trying to save up for all of these expenses as a parent of multiple children, too.
Trying to track down all of the changes the program underwent over the past few years is dizzying. But what is even more dizzying is trying to find housing among frequent changes to the eligibility requirements, time limits on staying in the motel rooms, and caps on the number of rooms. Each new restriction drives hundreds of people out of the motel rooms.[11] People phased out of the program and who can no longer live in the motel rooms have these options: live in their personal vehicle, stay with family or friends, camp out in a tent, live on the street, or find an emergency shelter.
Even though the state forced an estimated 1,000 people to leave their motel rooms between September and October, those same people will be eligible again for motel housing once again starting on December 1.[12] In the winter months, the cap on the number of rooms available and the eighty day stay limit will disappear.[13] Municipalities and the state are opening shelters to accommodate people displaced by the phasing out of the motel program.[14] For example, the state is opening two shelters in Waterbury that can house 17 families.[15] It is doubtful, however, that the upcoming shelters can house all of Vermont’s houseless population. Even the motel program was insufficient; people who did not use up their eighty days were still denied access to a motel room because of a lack of space.[16] People may hesitate to reapply for a motel program voucher. Caution could stem from all of the recent dehumanizing changes within the program, like forcing people out of housing in October only to let them back in in December.[17]
Vermont’s solutions to houselessness have dehumanizing undertones. In the transition from the motel program to shelters, the state fails to adequately inform motel program participants about the shelters, provide transportation provided to the sites, and provide basic amenities like showers and storage space.[18] For the new shelters in Waterbury, families must undergo an intake process to be admitted.[19] There appears to be no publicly available criteria for what this intake process consists of, which is worrisome. By what standard would a houseless family be more deserving of housing than another houseless family?
Another problem with Vermont’s motel program is the shadiness happening behind the scenes. For example, a motel owner improperly withheld $3,300 of security deposits per occupant.[20] These deposits were supposed to be given to motel room occupants who stayed in the motel room program for at least four months and left their rooms in good condition.[21] The motel owner, who operates five of the motels involved in the motel program, is supposed to pay back the improperly withheld security deposits.[22] So now, instead of getting the financial relief these unhoused people desperately needed when they left the motel, they were robbed of the money they were entitled to and potentially remain in financial distress. To get the wrongfully withheld money, unhoused people have to work with the Attorney General’s office, adding to the stress of being unhoused.[23]
In sum, the Vermont General Assistance Housing Program is constantly embroiled in a frenzy of sudden changes that make finding housing even more chaotic for people experiencing houselessness. The state needs to find ways to protect people accessing the motel program from wrongdoing and stop imposing arbitrary time limits and room limits. Should the state completely phase out the motel program, the shelters acting as a replacement for the program must be accessible and provide basic amenities to promote the dignity of unhoused people in Vermont.
After this November’s Presidential Election, some liberals are calling for Justice Sonia Sotomayor to step down before the next administration takes office.[1] The calls for Justice Sotomayor’s resignation are out of fear about her dying in office, as the late Justice Ruth Bader Ginsburg did, giving President-elect Trump another appointment that will alter the balance of the Court.[2] Additionally, Liberals argue that even if Justice Sotomayor survives another four years, Democrats are not likely to regain control the United States Senate for at least another decade.[3] Justice Sotomayor is currently 70 years of age.[4] Persons assigned the sex of female at birth in the United States lived on average 80.2 years in 2022.[5] However, liberals often point out that Justice Sotomayor has type one diabetes to strengthen their argument.[6]
The appointment process for federal judgeships became highly politicized in 2013. Harry Ried, who was the United States Senate Majority Leader at the time, got his Democratic colleagues in the Senate to end the filibuster for lower federal court judges.[7] Senator Reid took this extraordinary measure after 41 Republicans consistently blocked the two-thirds majority vote needed to approve President Obama’s lower court nominees.[8] Predictably, just three years later in 2017, under a Republican controlled United States Senate, Senator Mitch McConnell got his Republican colleagues in the Senate to end the filibuster for United States Supreme Court nominees.[9] Thus, now only a simple majority vote in the United States Senate is needed to “advise and consent”[10] on all federal judicial nominees. Arguably, one-third of the United States Senate blocking a democratically elected majority from confirming a judicial nominee is bad. However, the Public’s increased perception of the Supreme Court as political is worse.
Public confidence in the United States Supreme Court is at its lowest point in three decades.[11] Many United States Citizens view the nine Justices of the Court now simply as politicians in black robes. This is concerning because a free and independent judiciary is key to upholding the rule of law in a democracy.[12] If the public views the Court as an extension of politics, then the Court’s role in our constitutional democracy is weakened. Public outcry for a Justice to resign because of partisan politics is the type of danger that President George Washington alluded to in his 1796 Farewell Address.[13] Justices have a duty to uphold to the United States Constitution, unless they cannot fulfill their constitutional obligation, they should not be ousted by party politics. However, once hundreds of years of public trust is eroded it is not easily regained.
Democrats and Republicans must reach a compromise that de-politicizes the nomination and confirmation process for federal Judges and Justices. Since the founding, Supreme Court Justices have served on the Court for life.[14] This system worked fine however times have changed.[15] Justices and Judges are no longer approved by the Senate based on their qualifications for the job but rather based on their own personal jurisprudence.
Term limits are the way to de-politicize the Court. In 2021, President Biden established a Commission to investigate possible reform measures.[16] The Commission recommended an 18-year term limit system that would give each president two nominations.[17] The Commission made this recommendation after gathering testimony from scholars and legal professionals across the ideological spectrum.[18] Additionally, the Commission found that Chief Justice Roberts, Justice Kagan, and Justice Breyer have expressed benefits to term limits.[19] However, our elected leaders have yet to engage in a serious bipartisan effort to pass the Commission’s recommendations into law. Until then, the Court’s role in our constitutional democracy remains in limbo.
Submissions The Vermont Law Review continually seeks articles, commentaries, essays, and book reviews on any subject concerning recent developments in state, federal, Native American, or international law.
