Intellectual Property (IP) law walks the line between protecting the originality of creative works and maintaining a free marketplace of ideas.[1] Recipes, however, have long presented a challenge to that balance because they do not fit neatly into the traditional avenues of intellectual property protection. While social media platforms have exacerbated the flaws of IP law in the food context, they may also present an alternative means of justice for food creators to protect their intellectual property.
Four traditional avenues exist for intellectual property protection: (1) trademarks, (2) trade secrets, (3) copyrights, and (4) patents.[2] Each presents unique challenges for recipe developers. This leaves food content creators with no perfect legal recipe for recipe protection.[3]
First, industry professionals favor trademarks as their primary form of IP protection in the food industry, but social media complicates that favoritism.[4] Trademarks protect words, names, symbols, or devices used to identify and distinguish goods or services and indicate their source.[5] Trademarks can include names or symbols associated with a recipe or food product, provided they are used in commerce to identify the source of the goods.[6] For example, a restaurant name or a branded food product associated with a recipe may qualify for trademark protection. While companies trademark many food items, think Tootsie Rolls or Oreos, it is difficult for food creators to meet the requirements.[7] If a creator is only using a recipe as social media content, that recipe is not used in commerce and cannot be trademarked.[8]
Next, trade secrets provide clear protection for recipes while also having a clear downside in the context of social media creators. As the name implies, trade secret protection applies to information that derives economic value from not being generally known.[9] This presents an obvious problem for recipe creators, whose online platform consists of them sharing their recipes. Therefore, trade secrets are not a good option for food content creators.
Continuing to copyrights, despite being an easy solution for cookbook authors, content creators have difficulty getting copyright protection. Copyrights protect original works from unauthorized reproduction and distribution.[10] In the recipe context, copyrights protect the expressive text of a recipe which can include the list and sequence of ingredients, the precise language and grammar of step-by-step instructions, prose descriptions, personal anecdotes, and creative styling.[11] However, copyrights do not cover recipes that are mere lists of ingredients with basic instructions.[12] Therefore, recipes alone are rarely given copyright protection unless they contain a sufficient degree of originality and creative expression.[13] The distinction between barebones recipes and those with additional creative or literary content is especially fuzzy in the context of social media.
Finally, patent protection for recipes is similarly elusive. The U.S. Patent and Trademark Office grants patents for new and useful processes, machines, manufactures, or compositions of matter.[14] This can be useful for recipe developers, since they seek to protect the processes of cooking that a recipe contains. However, to obtain a patent, a recipe must be novel, non-obvious, and useful.[15] These can be difficult hurdles to overcome, unless the recipe demonstrates a cooperative relationship between ingredients that produces an unexpected result. Online recipe content creators rely more on volume of posting than intricacy of recipe to create content.
So, what recourse do content creators have when others steal their recipes and intellectual property law offers no remedy? Social media provides a solution: put justice into the hands of the people. Social media’s public nature gives creators an avenue to publicly air their grievances while using time stamps to prove the originality of their creations. This could lead to alternative dispute resolutions between the original creator and their imitators, or it could mean a trial by public opinion. Whatever the result, it is a meaningful mechanism for justice outside of established intellectual property law.
The legal system’s failure to protect food content creators’ intellectual property is not a recipe for disaster. Social media provides a unique opportunity for food content creators to take justice into their own hands.
[1] Kurt M. Saunders & Valerie Flugge, Food for Thought: Intellectual Property protection for recipes and food designs, 19 Duke Law and Tech. Rev. 159, 159. (2021).
The CDC defines intimate partner violence as abuse or aggression that occurs in a romantic relationship. The definition applies to both current and former spouses and dating partners.[1] Intimate partner violence can include physical violence, sexual violence, stalking, and psychological aggression.[2] In the United States alone, domestic violence is responsible for roughly 1,500 homicides annually.[3] Intimate partner violence is often synonymous with domestic violence, although domestic abuse can extend to children or other relatives. However, both New York and Vermont compile both intimate partner violence and domestic violence in annual reports for homicide statistics. New York reports have remained consistent in firearms not being the leading cause of death. By adopting similar laws, Vermont could benefit from New York’s approach and prevent future deaths.
Vermont and New York report differing statistics for gun violence. In 2022, Vermont reported that firearms caused death for 81% of the homicides in domestic violence.[4] Notably, domestic violence homicide has decreased from 71% of the total homicides per year in 1994 to 23% in 2022.[5] Although the rates varied from 1994 to 2022, the overall trend is . In one respect, the homicide rate is declining, but a constant remains true: firearms have been the leading cause of death since 1994 and are still the leading cause nearly thirty years later.[6] By contrast, in New York in 2022, domestic violence accounted for 16% of all homicides for that year.[7] The leading cause of death in domestic violence homicides was a knife, cutting instrument, or blunt objects at 45% of the total homicides.[8] Firearm deaths accounted for 23% of total homicides.[9] Similar to Vermont, New York has also seen a decline in domestic homicides.[10]
Domestic violence incidents involving firearms present a significantly higher risk of fatality. Domestic violence assaults involving a firearm are 12 times more likely to result in death than those involving other weapons or bodily force.[11] Additionally, firearms are used to commit more than three in five of all intimate partner homicides in the United States.[12] Domestic violence homicides involving firearms contribute to more than half of all mass shootings.[13] Approximately one-third of mass shooters have a history of domestic violence, indicating a direct consequence of mass shootings.[14] These statistics emphasize the need for comprehensive measures to control firearm access to prevent intimate partner deaths and broader violence.
New York and Vermont also have differing population sizes. New York’s population is significantly larger than Vermont’s. New York’s population is 19.9 million; while, Vermont’s population is 648,000. Along with a larger population, New York has the highest demand for domestic violence-related services in the country.[15] So, how can one of the most populous states in the country not have firearms as the top cause of death in domestic violence homicides? The answer might be hidden within gun control laws.
Federal law prevents firearm ownership for individuals convicted of domestic abuse and requires the surrender of any firearms an individual possesses.[16] Although federal protection exists, a gap remains due to the lack of legal protection for victims seeking protection orders., It is often left to individual states to fill this gap in legislation. The issue often is whether a state has laws requiring individuals to relinquish firearms when a protection order is issued. This is not just supplementary protection. Laws affecting the safety and well-being of domestic violence victims have a significant impact. The severity of the impact could result in further harm or even death.
Victims of domestic violence trauma should not be required to make extra efforts to secure their physical safety. Vermont and New York both have background check requirements for the purchase of firearms and prohibit domestic abusers under restraining orders from purchasing firearms.[17] However, Vermont’s legal protections for victims fall short in preventing future gun violence.[18] Vermont does not require individuals to surrender their firearms immediately when a restraining order is issued against them.[19] Vermont does allow family or other household members to make such orders necessary to protect the plaintiff or the children in the case.[20] However, this places an extra undue burden on a victim, likely suffering from trauma already. In New York, when temporary orders of protection are placed against domestic abusers, the court orders the surrender of their firearms to prevent harm to victims.[21] Additionally, New York imposes additional charges against an individual who fails to surrender their firearms. An individual is subject to a class A misdemeanor.[22]
The discourse between gun ownership and preventing domestic violence homicides is a complex and nuanced topic. New York is currently ranked as one of the strongest gun control states in the country.[23] Additionally, New York dodges firearms as the leading cause of death in domestic violence homicides. The correlation between a strong legal framework to protect potential victims and reduce their burden is something Vermont could adopt through analogous legislation. Vermont could prevent future domestic violence deaths by adopting similar gun restrictions like New York. Additionally, Vermont could address the ongoing issue of gun violence that consistently impacts its annual homicide rates.
[15] Joan Gerhardt, NY State Coal. Against Domestic Violence, Testimony of The New York State Coalition Against Domestic Violence to the Joint Budget Hearing Regarding Public Protection, Before the Joint Budget Hearing of the Senate Finance Committee and the Assembly Ways and Means Committee (2025).
As the use of generative artificial intelligence (AI) expands, society will experience both significant benefits and serious repercussions, underscoring the need for legal mandates that strike a balanced middle ground. In 2023, an attorney submitted a brief filled with fabricated case law generated by ChatGPT.[1] Judge Brantley Starr of the Northern District of Texas issued an order requiring attorneys to certify that either no portion of their filing relied on generative AI or that any AI-drafted language had been independently verified with traditional legal research tools.[2] Scholars observe that such orders reflect the growing unease with unchecked AI in legal practice.[3] This reaction marked the beginning of a broader trend: courts are moving toward mandatory disclosure of AI use to preserve the legitimacy of filings.[4] That approach should not remain confined to scattered local rules. The legal profession now needs a uniform standard. Only a consistent, nationwide disclosure regime will ensure accuracy, accountability, and transparency as AI reshapes the practice of law.
The Model Rules of Professional Conduct impose a longstanding duty on lawyers to disclose adverse authority, correct material misstatements, and avoid misleading courts through omission.[5] Mandatory AI disclosure is not a departure from these duties but their logical extension. Just as courts historically demanded clarity about sources of law, they now have reason to demand clarity about whether non-human systems contributed to the drafting of legal work. James Coben’s research on mediation confidentiality shows how disclosure frameworks balances transparency with competing values, and AI regulation will require similar calibration.[6]
Today, the framework governing AI remains fragmented among courts and legislatures. The Northern District of Texas requires a statement on the first page of any AI-assisted filing.[7] Missouri’s 20th Judicial Circuit demands disclosure of the specific AI tool used.[8] Washington’s Clallam County District Court insists attorneys certify the role of AI in filings.[9] Legislatures are now following suit. California requires providers to tell patients when AI generates clinical communications.[10] Starting February of 2026, Colorado will mandate disclosure whenever consumers interact with AI, unless the fact is obvious to a reasonable person.[11] Utah imposes disclosure requirements on both law enforcement and regulated services.[12] These rules providing disclosure is no longer experimental, but they also reveal inconsistency. A lawyer practicing across states faces a compliance maze, undermining predictability and frustrating the very goals of regulation.
Judges justify disclosure rules on three grounds. First, accuracy: human review of submissions remains essential to keep AI-generated hallucinations from reaching the courts.[13] Second, accountability: disclosure clarifies that responsibility rests with the attorney, not the software.[14] Third, transparency: clients and courts deserve to know when AI has shaped filings.[15]
These rationales mirror ethical frameworks beyond law. The Belmont Report identifies respect, beneficence, and justice as guiding principles for the protection of human subjects in research.[16] Respect demands transparency, beneficence ensures technology serves human well-being, and justice requires risks and benefits to be fairly distributed.[17] Likewise, scholars argue that disclosure promotes accountability and institutional legitimacy by revealing the reasoning and sources underlying decisions made with AI.[18]
The argument for a uniform standard also gains strength by analogy. Campaign finance law requires disclosures on political advertising to reveal its source.[19] Consumer protection statutes require labels on food, drugs, and financial products to prevent deception.[20] In each case, transparency sustains public trust. The same principle applies here: without disclosure, confidence in legal institutions erodes.
Still, disclosure has detractors. Poorly tailored rules can sweep too broadly. For example, treating Grammarly the same as ChatGPT risks stigmatizing low-risk tools and trivializing disclosure, making compliance more performative than meaningful. Scholars such as Kaminski & Malgieri warn that regimes narrowly focused on ex post ‘explanations’ risk devolving into checkbox compliance rather than meaningful accountability; as they note, the “current focus on the right to explanation is far too narrow.”[21]
Inconsistency adds further strain. Courts and legislatures impose divergent standards, creating uncertainty for attorneys and developers alike. California’s AI Training Data Transparency Act, for example, requires publication of training data summaries, a measure critics say jeopardizes proprietary information without enhancing consumer understanding.[22] Without nuance, disclosure rules chill innovation: lawyers and companies may avoid AI altogether to dodge compliance risks.
Despite these challenges, the solution is not retreat but reform. Disclosure must become mandatory nationwide. Congress should adopt a uniform standard for legal filings and regulated services.[23] A national framework would displace the patchwork of state rules, eliminate compliance traps, and ensure consistent enforcement.[24] Dispute resolution principles emphasize uniform procedures that reduce inequities among litigants; AI disclosure demands the same harmonization.[25]
That uniform standard must also be calibrated. Editing tools such as spell-check should not trigger disclosure.[26] Instead, disclosure should focus on high-risk uses: generating legal arguments, creating factual claims, or producing communications a reasonable person could mistake for human authored. This targeted approach avoids burdening attorneys and businesses with trivial certifications while still capturing uses that implicate accuracy, accountability, and trust.
Mandatory disclosure, if enacted as a uniform standard, will not stifle responsible AI adoption.[27] Lawyers will remain free to use AI tools, but disclosure will ensure they remain accountable for results.[28] Developers will continue to innovate, but disclosure will reassure regulators and the public that AI is not unchecked.[29] Consumers will benefit from honesty that enables informed choices.[30] Properly designed, a uniform standard strengthens both innovation and integrity.
The need for uniformity grows stronger as AI use accelerates. Courts, legislatures, and agencies already recognize the dangers of undisclosed AI.[31] Without disclosure, litigants risk fabricated citations, courts risk distorted evidence, and consumers risk deception.[32] With disclosure, all parties gain transparency and responsibility. The choice is not innovation versus integrity but fragmentation versus coherence. Only a uniform standard offers both innovation and integrity.
Disclosure must function as a uniform standard: clear, consistent, and nuanced. A federal rule balancing transparency with practicality can achieve that goal. Anything less leaves the profession vulnerable to inconsistency and eroded public trust. Mandatory AI disclosures should not be optional or situational, they must be universal. Only then will disclosure fulfill its promise: not as bureaucratic formality, but as a uniform standard worthy of the institutions it seeks to protect.
[1]See Mata v. Avianca, Inc., 678 F. Supp. 3d 443, 448 (S.D.N.Y. 2023).
[20]See 21 U.S.C. § 343 (explaining instances where food may be deemed ‘misbranded.’).
[21] Margot E. Kaminski & Gianclaudio Malgieri, Algorithmic Impact Assessments Under the GDPR: Producing Multi-Layered Explanations, 11 Int’l Data Priv. L. 125, 134 (2021) (noting that the existing “right to explanation” framework is too narrow and calling for more expansive, multi-layered disclosure regimes).
[25] Carrie Menkel-Meadow et al., Dispute Resolution: Beyond the Adversarial Model 291–93 (4th ed. 2025).
[26] N.D. Cent. Code Ann. § 16.1-10-04.2 (West) (providing that “artificial intelligence” excludes tools explicitly programmed for grammar, spelling, or word-suggestion assistance, clarifying that basic editing software is not subject to disclosure).
America’s current domestic affairs are in the hands of one man, Donald J. Trump. The 45th President of the United States quickly instituted an oppressive governance system utilizing executive orders, intimidation, and division.[1] President Trump continues to violate the Constitution and Federal Law in his second administration.[2] One of President Trump’s recent decisions, federalizing the National Guard (“Guard”) and deploying agents into Democratic Party-run cities, motivated a federal court challenge in California.[3] District Court Judge Charles R. Breyer of the Northern District of California recently issued several decisions since California Governor Gavin Newsom sued President Trump in response to the presidential federalization of the California Guard.[4] Judge Breyer’s latest opinion addressed jurisdictional arguments and stated that President Trump exceeded his authority.[5] Such broad sweeps of executive power have not been exercised analogously in years.[6] As more courts raise their gavels to review executive decisions, America’s ideological divides grow.
Historical Context
This is not the first time a president has directed the Guard.[7] Importantly, the Guard is a “reserve military force,” composed of majority part-time soldiers who meet for training throughout the year while holding civilian jobs.[8] Each state and territory have a Guard.[9] In general, a current president or state governor may deploy the Guard in response to local emergencies, civil unrest, or public health crises.[10] Conventionally, a president must receive governor authorization before deployment.[11] The last time a president skipped governor authorization for Guard deployment was 1965.[12] President Johnson “invoked his legal authority to deploy the national guard” without the consent of Governor Wallace of Alabama, a prominent segregationist of the time, who opposed the Civil Rights Movement.[13] President Bush faced an opportunity to exceed executive authority when Governor Blanco of Louisiana refused to deploy the Guard following Hurricane Katrina in 2006, but Bush weighed against federalization.[14]
Trump’s justification for executive overreach does not resemble prior emergency circumstances warranting the Guard. On August 11, 2025, President Trump manufactured a “Crime Emergency” in Washington DC by executive order.[15] The order states: “the city government’s failure to maintain public order and safety has… dire[ly] impact[ed]… the Federal government’s ability to operate efficiently.”[16] But crime is not a sufficient statutory justification for an emergency federalization.[17]
I. The President’s Justification
Notably, Trump does not justify deployment of the Guard under the Insurrection Act or the Posse Comitatus Act.[18] Rather, a century old law permitting Guard federalization by a president, “if there is a rebellion or danger of rebellion against the . . .US or, if the president is unable with the regular forces to execute the laws . . . .”[19] Trump alleges Guard usurpation is crucial to public safety, “aiding [in] a necessary crackdown on crime, and bolstering immigration enforcement.”[20]
Statutorily, 10 U.S.C.S. § 12406 does not list “public safety purposes” as a legitimate reason for Guard deployment.[21] Governor Newsom accurately characterized the militarization when he said that President Trump “commandeered 2,000 of our state’s National Guard members to deploy on our streets. Illegally, and for no reason.”[22] President Trump’s critics agree the White House “is trampling on longtime norms against the domestic use of military” and at risk of transforming the Guard “from an apolitical force” to “another arm of the Trump administration.”[23]
II. A Snapshot of the Newsom v. Trump Decisions
Litigation began when Newsom sought a temporary restraining order (TRO) preventing defendants, President Trump, from federalizing the California Guard.[24] The principal issue was Trump’s procedural violation of 10 U.S.C.S. § 12406, which requires “[o]rders issued through the governor[s]” when federalizing the Guard.[25] Recognizing a clear statutory procedural violation, Judge Breyer granted the TRO and pointed out constitutional violations.[26] Unsurprisingly, defendants appealed the TRO to the 9th circuit.[27] Then, the Court stayed the TRO and affirmed President Trump’s arguably unconstitutional behavior.[28]
The 9th Circuit determined “the President lawfully exercised his statutory authority.”[29] The Court found that President Trump received governor authorization by “transmittal of the order to the Adjutant General of the California National Guard—who is authorized . . .to ‘issue all orders in the name of the Governor.’”[30] The Court also undermined Judge Breyer’s redress by adding that even if this transmission was insufficient to satisfy the procedural requirement, the district court likely exceeded its scope of relief.[31]
The 9th Circuit’s reversal of Judge Breyer’s injunctive relief illustrates the ideological divide exacerbated by President Trump’s executive actions. Circuit courts and SCOTUS support the executive.[32] Governor Newsom and Judge Breyer do not stand alone against President Trump’s federalization of the Guard.[33] As more challenges to executive authority arise throughout Trump’s second administration, district judges must take a stand. American law faces a critical point.
III. The Future of Breyer’s Ruling
Although federal district court judges challenge President Trump’s decisions, higher courts located close to the President continue to support his decisions.[34] SCOTUS directly supports unconstitutional actions as the highest court, effectively sitting in Trump’s back pocket.[35] Without strong checks and balances to restrain branches of government from exceeding their authority, America risks integrated corruption and loss of state sovereignty. Given the rise of “shadow docket rulings” in the Trump administration, SCOTUS is likely to review Newsom v. Trump.[36]
Conclusion
In conclusion, courts and citizens should be concerned about clear abuses of executive authority. Trump’s federalization of the National Guard, without the consent of state governors, violated the procedural requirements of 10 U.S.C.S. § 12406.[37] The President’s justification for deployment of America’s reserve military force in democratic cities amounts to a manufactured crime emergency based on ideological differences. This is not a system of governance that states should support. Governor Newsom summarized the issue, “[t]his is beyond incompetence — this is [Trump] intentionally causing chaos, terrorizing communities, and endangering the principles of our great democracy. It is an unmistakable step toward authoritarianism. We will not let this stand.”[38]
Moving forward, district court judges should prepare for the oncoming ideological boxing match. It is permissible and encouraged for courts to review executive actions, as the Founders intended.[39] Hopefully, America can return to healthy political discourse and courts will uphold the rule of law despite political pressures.
[18] Elizabeth Goitein, Unpacking Trump’s Order Authorizing Domestic Deployment of the Military, Brennan Ctr. for Just. (June 10, 2025) https://www.brennancenter.org/our-work/analysis-opinion/unpacking-trumps-order-authorizing-domestic-deployment-military (stating Trump likely chose this approach because of the familiarity of abuse within the Insurrection Act).
[26] Newsom v. Trump, No. 25-cv-04870-CRB, 2025 U.S. Dist. LEXIS 112430 (N.D. Cal. Sept. 9, 2025) (“[Trump’s] actions were illegal—… violating the Tenth Amendment to the United States Constitution.”).
[34]See generally Trump v. CASA, 145 S. Ct. 2540 (2025) (prohibiting district court’s grant of a universal injunction addressing birthright citizenship); Trump v. United States, 603 U.S. 593 (2024) (recognizing “some” immunity for the president from criminal prosecution for official acts); Trump v. Wilcox, 145 S. Ct. 1415 (2025) (staying injunction granted by district court in response to firing NLRB workers); Trump v. Boyle, No. 25A11, 2025 U.S. LEXIS 2695 (U.S. July 23, 2025) (affirming Wilcox decision as precedent); Amy Howe, Supreme Court agrees to decide the fate of Trump’s tariffs, SCOTUS Blog (Sept. 9, 2025) https://www.scotusblog.com/2025/09/supreme-court-agrees-to-decide-the-fate-of-trumps-tariffs/.
Dee Farmer, a pro se litigant, is recognized as the first transgender person heard by the Supreme Court.[1] Dee, who never graduated high school, wrote her original complaint by hand from a prison cell and filed it with the U.S. District Court for the Western District of Wisconsin .[2] Dee spent most of her time in the sparsely populated prison library to avoid taunting, harassment, and violence from other prisoners. There, she taught herself the law to advocate for her rights. When she was beaten and raped by another prisoner two weeks after being transferred to a high-security prison, she filed a civil lawsuit that took her all the way to the Supreme Court in 1994.
As discussed below, Dee’s experience demonstrates that the landscape of the carceral system and the legal system remains largely unchanged. This injustice leaves victims of sexual violence in prison the same singular avenue for justice three decades later—proving that their case meets the stringent deliberate indifference standard.
Dee’s case forced the U.S. to acknowledge its willful blindness of prison rape, yet the “brutality” that is the “equivalent of torture”[3] continues to be a reality of confinement. The Prison Rape Elimination Act (PREA) largely inspired by Farmer—as passed unanimously by Congress in 2003 and signed into law by President George W. Bush in 2003.[4] The PREA created the National Prison Rape Elimination Commission, which was tasked with “identifying ways to curb the incidence of sexual assaults in prison.”[5] The Commission ultimately submitted standards to the DOJ for review, and the final standards were published in the Federal Register in 2012.[6]
So far as incentivizing prison reform goes, it lacks teeth.[7] Though the PREA established new standards for compliance, improved data collection, and increased general awareness, noncompliance is penalized by a mere loss of 5% of grant funds.[8]Most notably, the PREA doesn’t provide a private right of action that victims could use to sue.[9] Absent sufficient government intervention, prisoners continue to face sexual violence as though it were a condition of their imprisonment.[10] The most recent statistics available from the Bureau of Justice Statistics reported 36,264 allegations of sexual victimization in 2020.[11]
Farmerv. Brennan is now the binding precedent for “failure to protect” claims under the Eighth Amendment.[12] It is one of the most cited cases in U.S. history.[13] The Eighth Amendment prohibits “cruel and unusual punishment.”[14] In Farmer, the Court created a two-part test: that a plaintiff can establish a “failure to protect” claim in violation of the Eighth Amendment by showing that (1) they are “incarcerated under conditions posing a substantial risk of serious harm” and (2) that prison officials are deliberately indifferent “to inmate health or safety.”[15]
This ruling may seem like a victory for prisoners’ rights, but plaintiffs routinely fail to meet the high standard of “deliberate indifference” set by the court in Farmer. This was Dee’s fate. She lost her case on remand.[16] The first prong of the Farmer test does not typically prove to be a legal obstacle for victims of sexual violence, but the second prong is a different story. What exactly is deliberate indifference? The term “deliberate indifference” originated from a 1976 case, Estelle v. Gamble,[17] in which the Supreme Court defined this standard to mean “a state of mind more blameworthy than negligence.”[18]
Dee argued for a lesser objective standard similar to civil law’s negligence standard. The Court expressly rejected Dee’s argument and instead adopted the subjective standard of criminal recklessness to prove deliberate indifference.[19] Under this standard, a prison official will only be held liable if they subjectively knew of the risk of harm and, despite their knowledge of the risk, failed to take reasonable action to prevent it. Put another way, the victim must show that the prison official knew there was a risk of harm and failed to respond reasonably. Under this standard, the claim lives or dies by the proof of what was in the officials’ mind–not the abuse itself, regardless of how extreme.[20] There is no specific data on these cases, but a 2020 analysis of 1,500 failure to protect cases found that less than 1% were successful.[21] Plaintiffs often fail to surpass opposing counsel’s motion for summary judgment.[22]
For a prisoner, the legal obstacles they must face to seek justice are nearly insurmountable. Even if the standard were lessened to the civil negligence standard, prisoners still face the Prison Litigation Reform Act, which created a slew of significant roadblocks to bringing suit.[23] The greatest roadblock, however, is fear. Victims often face psychological and social difficulties in the process and decision to confront their abuser. An incarcerated victim faces these same fears from behind bars. Prisons are plagued with hyper-masculinity, vastly unequal power dynamics, and stigmatized beliefs of sexual orientation and gender identity.[24] The mental and physical risk to safety posed by bringing lawsuit is an extreme deterrent. The standard should be reformed, and a higher threat of liability could incentivize change in prisons. But not in the service of prison reform. That is the government’s responsibility. It should be reformed for the same reasons that any standard should be reformed—in the service of equitable justice.
“[M]any inmates,” Justice Blackburn wrote in Farmer, “discover that their punishment degenerates into a reign of terror unmitigated by the protection supposedly afforded by prison officials.”[25] The United States retains toothless federal regulations, narrow avenues of legal relief, and a society that more commonly recognizes prison rape as a punchline rather than a problem. The government frequently fails to meet its responsibility to protect incarcerated citizens.[26] Instead, the United States government chooses to primarily place the burden of rectifying the country’s morality squarely on the backs of incarcerated victims of sexual violence. The government’s deliberate indifference—if put to the test—should not survive.
[7] Elizabeth A. Reid, The Prison Rape Elimination Act (PREA) and the Importance of Litigation in Its Enforcement: Holding Guards Who Rape Accountable, 122 Yale L. J. 2082 (2013).
[8] Prison Rape Elimination Act (PREA), BJA, https://bja.ojp.gov/program/prea/overview (last visited Sept. 17, 2025); Subsequent amendments the PREA in 2016 and 2018 have followed suit. Justice For All Reauthorization Act of 2016, Pub. L. No. 114–324, 130 Stat. 1948 (2016); United States Parole Commission Extension Act of 2018, Pub. L. No. 115–274, 132 Stat. 4160 (2018).
[11] Emily D. Buehler & Shelby Kottke-Weaver, Bureau of Just. Stat., Sexual Victimization Reported by Adult Correctional Authorities, 2019–2020 – Statistical Tables 1 (2024).
[12] Dee Deidre Farmer & D. Dangaran, Farmer at 31: Historicizing Trans Rights in Prison through Intergenerational Doctrine, 48 N.Y.U. Rev. L. & Soc. Change 321, 326 (2025).
[22]See Ciara N. Cannoy et al., Legal Digest, Standard for Deliberate Indifference to Inmate Safety and Medical Needs, 52 J. Am. Acad. Psych. & L. 128, 1–3 (2024).
[24]See Craig Haney, The Perversions of Prison: On the Origins of Hypermasculinity and Sexual Violence in Confinement, 48 Am. Crim. L. Rev. 121, 127–28, 134–35, 139 (2011); See also Alysia Santo et al., In New York Prisons, Guards Who Brutalize Prisoners Rarely Get Fired, Marshall Project (May 19, 2023), https://www.themarshallproject.org/2023/05/19/new-york-prison-corrections-officer-abuse-prisoners.
The United States criminal justice system has been rightly criticized for its problems of mass incarceration, systemic discrimination, and inefficiency.[1] Many advocates for change suggest that the current system is unredeemable and that such alternatives as restorative justice approaches must happen outside of the system.[2] These arguments have merit, and certainly those who have worked in restorative justice for a long time can demonstrate empirically how incarceration fails and how restorative justice can succeed.[3] There are, however, programs called problem-solving courts or treatment courts. These courts work within traditional court systems but focus on recovery and rehabilitation rather than punishment.[4] Without abandoning work toward more radical reforms of the criminal justice system, restorative justice advocates should recognize and celebrate the current good work of treatment courts and the validity of non-punitive work done within the current justice system.
Treatment courts are a form of deferral that combines court-ordered monitoring with community support to address underlying issues to criminal actions, particularly substance abuse and mental health conditions.[5] Perhaps the most widely known treatment courts are adult drug courts, aimed at adults charged with criminal offenses who also have an underlying substance abuse problem.[6] There are also treatment courts specifically for those with multiple driving while intoxicated (DWI) convictions, families facing loss of custody due to underlying substance or other abuse, juveniles with substance or mental health concerns, and veterans who have become involved with the justice system.[7] This blog post will focus primarily on adult drug treatment courts, because these are the predominant version of treatment courts in the focus state, Maryland.[8]
Adult drug treatment courts (DTCs) are aimed at individuals who the court has determined are “high risk, high need[],” or who have a high risk of re-offending or failing to complete probation combined with a substance abuse problem that requires intensive treatment to overcome.[9] Advocates of DTCs argue that these specialized courts “combine public health and public safety” to both lower criminal activity and help those suffering the results of substance abuse.[10] Other benefits cited include lowering the number of rearrests for participants, reducing the amount of incarceration time, and saving the state money.[11] Critics of DTCs raise concerns such as lack of meaningful oversight and the danger that participants must waive fundamental due process rights.[12]
In Maryland, DTCs are part of a wider network of problem-solving courts (PSCs), all of which are subject to Maryland Rule 16-207, within the Maryland Rules for Court Administration.[13] The Rule defines a PSC as “a specialized court docket or program that addresses matters under a court’s jurisdiction through a multi-disciplinary and integrated approach incorporating collaboration by the court with other governmental entities, community organizations, and parties,” and it governs the process and requirements for initiating new problem-solving courts.[14] Some of these requirements are designed to protect the rights of participants. For example, after the chance to receive advice from an attorney, potential participants must enter into a written agreement about the requirements of the PSC and any rights they may be waiving.[15] The PSC must also examine potential participants on the record, so the Rule includes two different means to ensure participants fully understand the terms of entering the PSC program.[16] Before imposing any sanctions that involve a loss of liberty or termination from the program, the PSC must provide the participant with “notice, an opportunity to be heard, and the right to be represented by an attorney before the court makes its decision.”[17] Once a PSC is established, the Rule includes a requirement for regular monitoring and reporting by the Office of Problem-Solving Courts.[18]
While Maryland law closely prescribes the general requirements to which all PSCs must adhere, each PSC, once established, operates fairly independently.[19] This makes sense considering each PSC works through collaboration with other government and community organizations, since each community—in Maryland, generally defined at the county level—has its own mixture of organizations that are equipped and willing to take part in a PSC. In Carroll County, Maryland’s Adult Drug Treatment Court (CCDTC), the team includes several Circuit Court judges, a program coordinator, case managers, peer mentors, treatment providers, and liaisons from pretrial services, parole & probation, the state’s attorney’s office, and the public defender’s office.[20] The CCDTC program takes a multi-prong approach, including regular status hearings (every other Friday), regular check-ins with both a case manager and a probation agent, mandatory drug testing, working with a peer mentor, attending self-help meetings, and working with a substance abuse treatment provider.[21] CCDTC expects a great deal of work and commitment from participants, but it also provides a high level of support in achieving the program’s goals.
Howard Zehr’s The Little Book of Restorative Justice includes the following in his explanation of restorative principles: focus on harms, recognition of obligations created by those harms, engagement in the response to harm by all parties and the community, addressing causes of harm, and recognizing that offenders are often also victims.[22] When considering DTCs, specifically the CCDTC, in the context of these principles, certain parallels emerge. CCDTC participants must recognize their own obligation to work toward their recovery and, as a means to that end, to follow the CCDTC requirements. The participants themselves must engage in their treatment, but they are surrounded by a community created by the CCDTC team and the organizations that work with CCDTC. CCDTC and other PSCs in Maryland are designed to address underlying causes of harm such as substance abuse, and the PSC model recognizes that offenders who suffer from substance abuse also are victims of their addiction.
CCDTC and other Maryland PSCs certainly do not follow a fully restorative model. To start with, CCDTC only accepts participants who are non-violent offenders, one of Danielle Sered’s main critiques of current justice reform efforts.[23] Participation in a DTC is additionally curtailed by the fact that not every Maryland county has a DTC, and the availability of other types of PSCs are even more limited.[24] Victims do not make up a part of the CCDTC team.[25] In spite of the statutory protections built in, it is still possible for DTC participants to be terminated from their program and face additional incarceration or other penalties.[26] The NPC Research 2022 evaluation of Maryland adult DTCs determined the statewide graduation rate was 64%, hardly a glowing recommendation.[27]
Recognizing these limitations, DTCs still act creatively to reduce incarceration and provide better outcomes for citizens whose substance abuse has led to justice involvement. The same NPC Research report noted that DTC participants in Maryland spent an average of 23 fewer days incarcerated than non-participants over a two year period, that DTC programs invested in treatment services—a needed community investment—and that DTC programs reached a diverse group of participants.[28] During the chance to personally observe one of CCDTC’s Friday status hearings, I witnessed the community support participants receive, including attorneys taking a collaborative approach to future steps, the judge remembering hobbies and family occasions in the participants’ lives, and the participants themselves proudly sharing successes and honestly discussing issues that were impeding progress.
While both the long-term goal of an entire justice system built on restorative principles and the audacity of those who move forward with restorative programs without waiting for the rest of us are laudable, the quotidian work of DTCs and other PSCs still move justice in the direction of a more restorative approach. Howard Zehr recognized the practicality of seeking to be “as restorative as possible.”[29] The Maryland system of PSCs has many areas for growth, including greater access to these alternatives, exploring the possibility of PSCs for those who have engaged in violence, and improving graduation rates. Still, PSCs are one way that the Maryland justice system is working toward being “as restorative as possible,” and their work is worth celebrating and emulating.
[1] Danielle Sered, Until We Reckon: Violence, Mass Incarceration, and a Road to Repair 57–59 (2019).
[12] Erin Collins, Problem-Solving Courts and the Outcome Oversight Gap, 92 UMKC L. Rev. 533 (2024); Michel Panaretos Fullerton, Failing to Protect Participants’ Fundamental Rights in Drug Treatment Court, 74 Mont. L. Rev. 375 (2013).
Police “Reforms” You Should Always Oppose…
3. Are the proposed reforms primarily technology-focused? If yes, then you should oppose them because:
a. It means more money to the police.
b. Said technology is more likely to be turned against the public than it is to be used against cops.
c. Police violence won’t end through technological advances (no matter what someone is selling you).[1]
Although many authorities touted body-worn cameras (BWCs) as critical to police accountability, these cameras were quite literally “turned against” the public from the start [2] One of the demands that came out of the early days of the Black Lives Matter movement was greater transparency and accountability from the police. [3] BWCs were presented as a tool that would objectively show interactions between police and citizens.[4] What BWC footage shows however, is a grainy “point of view” perspective shot of the public, the officer is not in frame.[5] BWC footage is used in cases against the public and even when considering the constitutionality of police actions.[6] It is imperative that courts address the inherent bias present in BWC to protect the public and deliver justice. Concepts of “filmic enunciation” and “the gaze” from film theory can inform the cinematic nature of BWC footage, addressing this bias.
Video evidence is widely regarded in mainstream culture, by judges, and in courts as “true” and “unbiased.”[7] Having evidence of officer and citizen interactions promised to be a solution to the issue of transparency and accountability. [8] The implementation of BWCs was embraced by police forces and promoted by many vocal stakeholders including, activist groups and legislators.[9] This technological reform promised police accountability through greater surveillance, but the officers are not the ones being surveilled by BWCs.[10] The dominant rhetoric around BWC footage did not address the inherent bias of this footage as it depicted the public through the perceived perspective of an officer. The promise of BWC footage hinges on the dominant belief that film is an objective media.[11] However, film is not objective. It is not truth, but rather a medium that depicts perspective. [12] Film is subject to all the biases and rules of depiction of a painting.[13] What gives film the illusion of truth is the filmic enunciation: the system that presents the framework of film as truth. [14]
Part of what creates the framework of film as truth in cinema is the depiction of the film through the point of view of a character; that point of view is not fixed on one object or from one perspective. [15] Similarly, BWC footage depicts the point of view of an officer, but the point of view is not static, it is discretionary; it shows choppy images of where the officer directs the camera. This change in framing and subject of BWC footage is what creates the illusion of truth in the viewer.[16]
While the choppy quality of the film contributes to the perceived truth of the footage, the perspective from which the film is shot further biases the viewer in favor of the officer by putting the viewer in the “position” of an officer during an interaction with the public.[17] BWCs are typically placed high on an officer’s chest. [18] This near-eye-level recording creates a “point of view” shot. The footage depicts what is directly in front of the camera, with audio from the scene and recording of the officer’s voice.[19] For a viewer watching the footage, they are put into the position of occupying the world through the perspective presented by the BWC footage.
In Christian Metz’s book, The Imaginary Signifier, he speaks about how when someone is viewing a film they take on the position of the spectator.[20] Metz argues that the spectator is “all perceiving,” their reality is in the film frame.[21] Since the spectator’s body is not visible on screen, the viewer accepts what is being presented as their own vision.[22] The viewer is then positioned “entirely on the side of the perceiving instance.”[23] When someone views BWC footage, they step into the position of the officer, who in this situation is the theoretical “all seeing spectator.”[24] This position as the truth wielding spectator creates an inherent bias in the viewer that favors what is being shown before them—despite the other circumstances that are happening all around the filmed frame—including the officer’s own actions.
In Laura Mulvey’s famous film theory article “Visual Pleasure and Narrative Cinema” she breaks down the concept of the gaze in film.[25] The “gaze” refers to the power dynamics that come along with being the active viewer and the object, or the party to be viewed.[26] Mulvey describes the active/looking party as occupying the position of the hero, the position of power and truth.[27] When the hero, the active/looking party, is depicted as a police officer or a representative of the law, the looking party’s perspective is representative of the “law” and is meant to connote truth.[28] Meanwhile the “to be viewed” party is inversely affected by the way they are framed.[29] The object to be looked at is presented as the object of scrutiny, a viewer watches the object as a spectacle on screen, they are disempowered through being surveilled.[30] This parallels how bodycam footage is presented with the officer occupying the position of hero, the looking party. The public is the looked at object, the object of scrutiny, their actions are the ones on display, they are disempowered. When watching BWC footage the viewer sees the public as spectacle while occupying the position of the officer, who is positioned as the “hero.”
When courts and juries treat BWC footage as objective it is dangerous for the public partially because of the reasonableness standard that officers are held to in cases where they are being charged with excessive force. In Graham v. Connor, the court held that “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”[31] The framing of an officer as the spectator in BWC footage puts them in a position of power.[32] This position of power is likely to favor the perceived reasonableness of the officer on the scene. The camera gives an impression of the officer’s perspective, but it is not the true or objective account of the interaction between police and the public.
This was exemplified in the case of Derrick Price. While Price was sitting in his car officers approached him because he was a suspect in a crime. Price complied, getting out of his car and onto the on the ground as the officers headed towards him.[33] Despite Price’s compliance, the officers brutalized him.[34] The officers on the scene were wearing BWCs, and what the footage showed was shaky footage of the officers running to the scene, audio of the officers shouting at Price to “[s]top resisting.”[35] The BWC footage depicted a high stress and potentially threatening scene.[36] However, security footage from a nearby building showed that Price complied with orders and attempted to surrender to officers who brutally beat him.[37] The footage not only presented a bias in favor of the officers, the officers also wrote their incident reports depicting the fiction their BWC footage showed.[38]
The idea that BWC footage represents an objective view of interactions between police and the public is the first place to begin when addressing the issues with the footage itself. If we can call attention to the fact that this footage is not truth, that it is a biased perspective, we can make clear eyed decisions on whether and how we use the footage all together. If the public can understand the cinematic nature of BWC, people can make informed decisions on whether to and how to use this medium.
[1] Mariame Kaba, Police “Reforms” You Should Always Oppose…, Prison Culture Blog (Dec. 1, 2014), https://www.usprisonculture.com/2014/12/01/police-reforms-you-should-always-oppose/.
[2] Howard M. Wasserman, Moral Panics and Body Cameras, 92 Wash. U. L. Rev. 831, 831-32 (2015).
[6]See State v. Bliss, 291 A.3d 551, 555 (R.I. 2019) (“Officer McKenna’s bodycam footage was the most compelling evidence, refuting defendant’s claim that he was complying.”); Floyd v. City of New York 959 F.Supp.2d 668, 685 (S.D.N.Y. 2013) (finding that BWC footage can address the constitutionality of stop and frisks by NYPD officers).
In 1997, the Vermont Supreme Court issued a landmark decision in Brigham v. State, holding that the state’s existing system of financing public education violated the Vermont Constitution.[1] The Court emphasized that educational opportunity could not be conditioned on local property wealth, because doing so entrenched inequality and denied students from poorer districts the same educational access as their peers in wealthier ones.[2] The Brigham decision became the foundation for Vermont’s equalization efforts in education finance, eventually leading to Acts 60 and 68, and now to Act 73, the newly adopted school funding reform.[3] While Act 73 is in many respects a positive step toward fairness, its provision for supplemental local spending represents a significant departure from Brigham’s vision. By allowing wealthier communities to layer additional resources onto their schools, the law undermines its own commitment to equality and risks reintroducing the very disparities Brigham sought to remedy.
Act 73 was crafted in response to longstanding concerns about Vermont’s existing local control school finance model, which had become increasingly complex and unsustainable.[4] The law revises the state’s funding formula to better reflect the costs of educating students in districts with higher needs. Specifically, it weights student counts more heavily for factors such as poverty, English language learning, and rural location.[5] Act 73 thus acknowledges that equal funding does not always mean equal opportunity: some students require more resources to achieve comparable outcomes, and some schools face structural challenges that make providing education more expensive. This approach aligns with Brigham’s recognition that absolute equality in per-pupil spending is not always possible or desirable, as differences in expenditure may arise from legitimate educational needs.[6] Act 73 thus represents a serious effort to design a funding system that is more responsive, equitable, and constitutionally sound.
However, Act 73’s allowance for supplemental local spending introduces a major flaw. Under the law, districts that wish to spend above the formula’s allocations may do so, provided their taxpayers are willing to shoulder the burden.[7] On the surface, this may seem like a harmless recognition of local choice and community investment. Yet in practice, it creates a pathway for wealthier districts to outspend others, not because of any legitimate educational cost differential, but simply because they have the financial capacity to do so. This move is in stark tension with Brigham, which cautioned against tying educational opportunity to income or wealth.[8] By reintroducing local discretion in this way, Act 73 risks repeating old mistakes in a new form.
The Brigham Court was careful to note that differences in educational spending would persist even under a fair system, stating “differences among school districts in terms of size, special educational needs, transportation costs, and other factors will invariably create unavoidable differences in per‐pupil expenditures.”[9] But importantly, each of the reasons Brigham listed for spending variation is accounted for in Act 73’s new formula. Rural isolation is weighted, poverty is weighted, and other factors like English language learning are weighted.[10] These built-in adjustments ensure that when one district receives more state aid than another, the difference is grounded in actual educational needs, not in the accident of property wealth. The supplemental spending provision therefore stands apart from this logic. It does not exist to address any gap or need overlooked by the formula. Instead, it simply provides wealthier districts with an avenue to enhance their schools beyond the level of equity the system is designed to guarantee.
This is where Act 73 undermines itself. On the one hand, it takes meaningful steps toward aligning Vermont’s education finance system with constitutional principles of equality. On the other hand, it simultaneously authorizes a mechanism that risks undoing this progress. If wealthy towns can regularly outspend others, students in those communities will enjoy smaller class sizes, broader course offerings, and more extracurricular opportunities. Meanwhile, students in less affluent districts will be confined to what the formula provides. While the baseline may be fairer than before, the overall system once again begins to resemble the tiered structure Brigham condemned—a base level of opportunity for all, supplemented by premium access for those fortunate enough to live in affluent areas.
Defenders of the supplemental spending provision may argue that local autonomy and community investment are important values, and that denying districts the option to go above and beyond is unfair. Yet this argument overlooks the central insight of Brigham—that the Vermont Constitution obligates the state to provide substantially equal educational opportunity to all children, regardless of where they live.[11] Allowing supplemental spending privileges the preferences of wealthy taxpayers over the rights of children in poorer districts. It makes a child’s opportunities dependent once again on the resources of their town, which is precisely the inequity Brigham struck down.
Ultimately, Act 73 represents both progress and regression. Its revised formula shows a sophisticated understanding of how to equalize resources while accounting for legitimate differences in cost. This is a major step forward for Vermont, and one that deserves recognition. But by preserving space for supplemental spending, the law opens the door to a two-tiered education system in which wealthier districts can consistently provide more than others. If Vermont is to fully honor the constitutional principles articulated in Brigham, it must close this loophole. Only by committing to a system where funding differences stem from educational needs rather than community wealth can the state ensure that every child, regardless of zip code, has a fair shot at the opportunities education provides.
[1]See Brigham v. State, 692 A.2d 384, 385 (Vt. 1997).
Puerto Rico’s return to the promised land suffered yet another roadblock. In early August 2025, President Trump removed five of the seven members of the federally imposed Financial Oversight and Management Board.[1] In 2016 as a result of Puerto Rico’s $70 billion debt, Congress passed the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA).[2] Congress intended this Act to provide a method for Puerto Rico to “achieve fiscal responsibility and access to the capital markets.”[3] The act included the creation of the aforementioned Financial Oversight and Management Board (the “Board”) with the responsibility to oversee Puerto Rico’s budget and help restructure Puerto Rico’s billion-dollar debt.[4] The Board is composed of seven members appointed by the President, and six of those members are selected from lists provided by the House and Senate leaders.[5] The President does have the power to remove these members but only for cause.[6]
Following the dismissals, the White House stated that the board “has been run inefficiently and ineffectively by its governing members for far too long and it’s time to restore common sense leadership.”[7] What this “common sense leadership” might look like is yet to be determined because none of the vacancies have been filled. This could take time, given that Congress only required that the vacancies be filled “in the same manner in which the original member[s] [were] appointed.”[8] There are no provisions in PROMESA requiring that these positions get filled within a certain number of days, and there are no interim members. How long it will take for these vacancies to be filled is difficult to predict, but the effects are starting to be seen.
Shortly after dismissing the members, a deal to restructure the remaining debt fell through.[9] The unsettled debt is from the Puerto Rico Electric Power Authority, and it amounts to $8.5 billion.[10] The proposed deal would have paid creditors $2.6 billion instead of the full $8.5 billion they seek.[11] The executive director of the Board repeatedly said that Puerto Rico cannot afford to pay the full debt.[12] Experts believe the recent vacancies may lead to the appointment of members who favor the creditors receiving full payment.[13] One of the exiting members, Andrew Biggs, pointed out how it is likely the board will be stacked with lobbyists who favor the bondholders.[14] Stacking the board with members who favor the interests of these creditors would be detrimental to Puerto Rico’s economy. The citizens of Puerto Rico are already struggling to make ends meet as it is. Puerto Rico has a lower median income than all 50 states and one of the highest electric bills in the United States.[15] It is essential that the President and leaders of both parties in Congress remember that the board represents Puerto Rico in this entire process.[16]
The dismissal of five of the seven members will likely also extend the presence of the oversight board. Congress established two requirements for the board to be terminated. First, the Board must certify that “the government has adequate access to short-term and long-term credit markets at reasonable interest rates to meet the borrowing needs of the territorial government.”[17] Second, for “at least 4 consecutive fiscal years the territorial government has developed its budgets in accordance with modified accrual accounting standards; and the expenditures made by the territorial government during each fiscal year did not exceed the revenues of the territorial government during that year.”[18] Without the experience of a continually-operating, full-strength Board, it will be even more difficult to fulfill these requirements. Thus, the dismissal of over half the Board is likely to extend its presence.
After nine years under the supervision of the Oversight Board, Puerto Rico finally passed one budget in accordance with the second requirement.[19] While this may be a sign of a light at the end of the tunnel, the government must pass three more balanced budgets. Hopefully, this will not be jeopardized by the pending deal with the power authority creditors. An unfavorable deal could result in even higher electricity bills or worse yet, the government falling back into bankruptcy.[20]
The Oversight Board has been highly criticized for the enormous budget cuts it has made to different government agencies while spending an exorbitant amount of money on consultants, advisors, and experts.[21] The President and Congress have the power to appoint people who will represent the interests of Puerto Rico. The people of Puerto Rico desperately await the fulfillment of this promise. The three million United States citizens that live in Puerto Rico deserve better.
Artificial intelligence (“AI”) now enables nearly identical simulations of a person’s voice or likeness known as digital replicas.[1] In April 2023, an AI-generated song imitating Drake and The Weeknd went viral, earning millions of streams from genuine fans before being taken down.[2] The “Fake Drake” scandal shows that artists can easily be replicated without consent, raising urgent legal questions about ownership rights, exploitation, and free expression.[3]
Without amending federal legislation, states with prominent music industries moved quickly to protect their artists.[4] Tennessee’s Ensuring Likeness, Voice, and Image Security (ELVIS) Act amended its right of publicity statute to explicitly prohibit AI-generated voice and likeness impersonations.[5] New York followed with its Digital Replica Law, which scrutinizes artist agreements, specifically contracts authorizing the use of digital replicas.[6]
Both Tennessee’s ELVIS Act and New York’s Digital Replica Law attempt to protect artists from AI misuse, but each raise First Amendment concerns.[7] Tennessee’s sweeping liability regime risks unconstitutional overbreadth, while New York’s narrower, contract-based approach still constrains contractual speech by limiting employment agreements.[8] A federal framework, such as the proposed NO FAKES Act, should learn from these state models and strike a balanced that safeguards artists without chilling free expression.[9]
I. State Responses: Tennessee and New York
A. Tennessee’s ELVIS Act
Effective in July 2024, Tennessee’s ELVIS Act, makes “voice” a protected attribute under the state’s right of publicity.[10] The Act defines voice broadly to include both actual and simulated sounds “readily identifiable and attributable to a particular individual.”[11] Liability extends to replica authors, host platforms and distributors, and the developers of tools with the “primary purpose” of creating replica content.[12] Violations can result in civil damages, injunctive relief, and even criminal penalties.[13]
The Act contains fair use exemptions news, public affairs, and sports broadcasts, but limits them only “to the extent such use is protected by the First Amendment.”[14] This vague language leaves reporters, commentators, or satirists unsure whether their content is shielded from liability.[15] Practitioners also highlight the state law’s expansive reach, warning that it imposes obligations on out of state platforms and risks unconstitutional overbreadth.[16]
B. New York’s Digital Replica Law
New York’s Digital Replica Law, effective January 2025, takes a narrower approach. It voids contracts that authorize a replica to 1) replace work the performer would otherwise have done in person, 2) fail to clearly define the intended use, or 3) were negotiated without artist representation.[17] The law also targets contracts to help protect artists by voiding contracts with certain provisions.
By targeting exploitative contracts, New York’s law mirrors principles in collective bargaining agreements, including the Screen Actors Guild—American Federation of Television and Radio Artists’ (SAG AFTRA’s) AI provisions.[18] Unlike the ELVIS Act, this statute emphasizes bargaining power and informed consent instead of broad liability. Keeping the law contract-focused makes the law more defensible under the First Amendment.[19] Still, because it restricts contractual speech, some practitioners worry that it limits permissible artist agreements and expressive uses in entertainment markets.[20] The New York State Bar Association warns that poorly tailored restrictions risk chilling legitimate AI applications, even with consent.[21]
II. Toward a Federal Framework
Recognizing the rapid rise of AI-generated works and limits of state regulation, Congress has begun considering federal action.[22] The NO FAKES Act, proposed in 2023, would create a federal right against unauthorized digital replicas, however its initial draft is highly criticized as overbroad and potentially unconstitutional.[23] In 2024, the U.S. Copyright Office concluded that state laws are inadequate and called for consistent federal legislation that balances protection with First Amendment concerns.[24] The Office recommended limiting liability to distribution of unauthorized replicas, adopting safe harbor provisions for platforms, and creating a flexible balancing framework instead of categorical exemptions.[25]
Professional associations also support federal regulation. The American Bar Association’s 2025 Resolution 501 urged Congress to enact legislation “protecting an individual’s right to authorize or prevent” digital replicas of their likeness and voice. It emphasizes strong safeguards to ensure future laws align with the First Amendment and addresses publicity rights, privacy, innovation, and third-party liability.[26]
Conclusion
AI-generated replicas pose real risks to artists, but state efforts reveal the dangers of overcorrection. Tennessee’s ELVIS Act recognizes the importance of protecting voice and explicitly addresses AI-generated replicas, yet its sweeping liability section risks chilling various expressive works. New York’s Digital Replica Law, by contrast, emphasizes informed consent and voids exploitative contracts, though it still regulates speech through chilling over restriction.
As Congress revisits the NO FAKES Act, it should draw inspiration from both: adopt ELVIS’s recognition of voice and AI replicas as protectable interests, while rejecting its overbroad liability provisions, and incorporate New York’s contract-based safeguards to ensure informed consent. A federal framework built on these principles can help protect artists from exploitation without undermining the expressive freedoms outlined in the First Amendment.
[1] U.S. Copyright Off., Copyright and Artificial Intelligence, Part 1: Digital Replicas 1 (2024).
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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.
