Since the start of the twenty-first century, employers have increased their monitoring of employees to track productivity.[1] This practice dates to the early days when employers hired a group called “The Pinkertons” to conduct workplace surveillance.[2] Now employers can monitor every click, movement, and even biometric signal of their employees.[3] Employers have expanded to monitoring employees even in their own homes, thanks to the rise of remote work.
This blog argues that the law should officially establish a fiduciary relationship between employees and employers when it comes to handling workplace data. Since no such duty currently exists, this proposal outlines what that duty entails, the relationship it should replicate, and how the legislative or judicial branch can implement the proposed law.
The Current Framework
In the United States, there is no single, comprehensive federal law that strictly limits employee surveillance. Instead, federal statutes indirectly regulate workplace monitoring by prohibiting its use in ways that violate specific employee protections.
The main law governing the interception of communications is the Electronic Communications Privacy Act (“ECPA”). While this law governs electronic surveillance, in practice, it provides little protection for employees. Congress enacted the ECPA in 1986,[4] far before remote work, AI monitoring, and constant digital surveillance became the norm. Additionally, the ECPA prohibits the interception of electronic communications but carves out broad exceptions that largely favor employers. Under the “ordinary course of business” exception, employers may lawfully monitor communications made on company systems if they claim a legitimate business purpose.[5] The statute also includes a “consent” exception, allowing employees to consent explicitly or implicitly when they use employer-provided devices after receiving notice of monitoring.[6] In short, the ECPA demonstrates how current federal law is outdated and was designed for email and phone calls, rather than the algorithmic surveillance pervading today’s workplaces.
The COVID-19 pandemic highlighted the weaknesses of existing federal employee protection laws. Practically overnight, massive numbers of employees transitioned to remote work, and employers needed a way to monitor their employees.[7] As the American Bar Association noted, remote work spurred a surge in employer use of tracking apps, wellness software, and “bring your own device” policies.[8] This moment exposed the asymmetry of control between employers and employees. Workers had no meaningful opportunity to consent to surveillance; participation became a condition of continued employment.[9] The power imbalance during this period reflects a relationship where the dominant party can exploit it unless the law imposes restrictions.
Why a Fiduciary Duty Fits in the Employment Relationship
Fiduciary duties exist to regulate relationships built on trust and vulnerability. Doctors, lawyers, financial advisors, and trustees are bound by duties of care, loyalty, and confidentiality because they control sensitive information that directly affects another’s wellbeing or rights.[10] Establishing an employee-employer fiduciary relationship would shift the employment relationship from one governed by minimal regulatory compliance to one grounded in heightened ethical and legal obligations.
The employer-employee relationship also shares the characteristics with the professions listed above. Employees entrust their colleagues with sensitive information – such as location, health, and communications – hoping they protect the data. However, due to the consent exception in the ECPA, there is a possibility that employers can misuse the data to discriminate against and even manipulate performance evaluations.[11] As Ifeoma Ajunwa has shown, employers can use the information their employees provide to delve into aspects of their behavior, including running an analysis on the risk of injury.[12] The potential misappropriation, if employed in that way, can undermine trust and increase the harms that a fiduciary duty aims to prevent.
What the Law Should Look Like
The proposed law should establish three core responsibilities when managing employee data: duty of care, duty of loyalty, and duty of confidentiality. It is important to note that these responsibilities do not eliminate the possibility of employee monitoring, as there are certain benefits to it.[13] Instead, the law would establish a legal baseline of fairness, allowing employers to use the tool while protecting employees’ data from abuse.
Duty of Care
Employers must implement reasonable safeguards to protect employee data from misuse, unauthorized access, or breaches. These safeguards can include limiting data collection to legitimate business purposes and adopting secure storage and retention practices.
Duty of Loyalty
Employers must prioritize employees’ best interests regarding their data. They should be prohibited from selling, sharing, or exploiting surveillance information in ways that can harm employees, such as targeting union activities or using irrelevant personal data in employment decisions.
Duty of Confidentiality
Employers must disclose what information they collect, how it is used, and when it is deleted. Additionally, employees should have access to their own data and the right to correct any inaccuracies.
Models for Implementation
Congress or the judiciary can establish this framework through legislation or through the development of common law.
Statutory Approach
Congress can create and codify an “Employee Data Protection Act.” This Act would explicitly impose a fiduciary duty of care, loyalty, and confidentiality on all employers who collect surveillance data.
The Act should mirror aspects of the General Data Protection Regulation (“GDPR”) law in the European Union. The GDPR has strict limits on data collection for consumers and references collective bargaining in the regulation.[14] It enhances individuals’ rights to data protection, imposes more stringent obligations on data processors, and grants regulators stronger enforcement powers.[15] Additionally, the GDPR imposes heavy fines on any company that violates the regulation—up to 20 million euros or 4% of global revenue (whichever is greater).[16] My approach would offer clarity and flexibility, enabling independent agencies, such as the Equal Employment Opportunity Commission, to implement regulations and establish private rights of action for employees.
Judicial Approach
Courts could evolve fiduciary principles through the common law, extending them to employment relationships involving significant data control. Supreme Court precedent also allows for the expansion of fiduciary relationships. In Jaffee v. Redmond, the Court recognized fiduciary obligations of confidentiality in the physician-patient and psychotherapist-client contexts even before statutory protection existed.[17] Furthermore, the court found that this privilege is rooted in the need for confidence and trust, which are essential requirements for effective psychotherapy.[18]
Judicial recognition would mirror the fiduciary duties of other professions, basing it on power dynamics and trust. Courts could hold employers who collect and control sensitive surveillance data equal to other fiduciaries, such as banks, entrusted with information that could harm the beneficiary if misused.
Although establishing this duty through judicial recognition may be slower than legislative action, it provides greater flexibility. This approach allows courts to develop a nuanced understanding of what constitutes acceptable monitoring versus exploitative data use, tailoring their decisions to the specific circumstances of each case. Over time, it could create a body of precedent that clarifies the limits of employer surveillance, promoting more ethical data practices and building trust in digital and workplace environments.
Conclusion
Workplace surveillance reveals a significant weakness in U.S. employment law: employees are increasingly sharing more of their personal information with employers, yet, as a practical matter, they have no legal obligation to protect that information. Establishing a fiduciary duty for employers in managing employee data could close this gap. Such a duty would transform surveillance from an unchecked management tool into a regulated trust-based relationship. Whether established by law or defined by courts, a fiduciary framework would ensure that technology fosters fairness and dignity, not control and fear, in today’s workplace.
[8] Alvin Velazquez & Muyi Zhang, Labor Laws and Surveillance in the Time of COVID-19: A Demand for Better Worker Protections, 38 A.B.A. J. Lab. & Emp. L., 93, 97, 102 (2024).
[9]See Shreya Chowdhary et al., Can Workers Meaningfully Consent to Workplace Wellbeing Technologies, arXiv 1, 2 (Mar. 13, 2023) (arguing that inherent power imbalance in the workplace prevents employees from giving meaningful consent).
[10]See generally Meinhard v. Salmon, 164 N.E. 545, 546 (N.Y. 1928) (stating that a fiduciary duty is held to something stricter than the “morals of the marketplace,” and asserting that a fiduciary standard is of a higher standard).
[11] Ifeoma Ajunwa, Algorithms at Work: Productivity Monitoring Applications and Wearable Technology, 63 St. LOUIS U. L. J. 21, 30–32 (2019
[14] Alvin Velazquez & Muyi Zhang, Labor Laws and Surveillance in the Time of COVID-19: A Demand for Better Worker Protections, 38 A.B.A. J. Lab. & Emp. L., 93, 100 (2024).
Photo by United States Drug Enforcement Administration
By Kathryn Stapleton
For many people with Attention Deficit Hyperactivity Disorder (ADHD), Narcolepsy, or Binge Eating Disorder (BED), medications like Adderall (mixed-salt amphetamine), Vyvanse (lisdexamfetamine), and Dexedrine (dextroamphetamine) are not optional; instead, for many patients, they provide the fortitude to take on daily life. However, since late 2022, both patients and prescribers have faced persistent barriers to accessing these medications. While manufacturing difficulties and swings in demand play a part, the core driver is pure regulatory red tape: the Drug Enforcement Administration’s (DEA) annual production quotas for Schedule II stimulants.[1] These quotas, designed to prevent diversion, now function as a restriction to accessibility. It is time to transform these regulations to safeguard both public health and supply security.
How the Quota System Works and Why It Matters
Under the Controlled Substances Act (CSA), the DEA must set aggregate production quotas (APQs) each year for every Schedule I and II substance, including amphetamine, dextroamphetamine, lisdexamfetamine, and methylphenidate.[2] The implementing regulation, governs manufacturer-specific quotas and procurement quotas.[3] In 2018, the DEA revised its framework to emphasize diversion risks in quota setting, increasing its discretion to limit supply further.[4] DEA establishes APQs annually and can adjust them mid-year when shortages emerge. In 2024, the DEA issued initial quotas in January. By September, the APQ for lisdexamfetamine (Vyvanse) and d-amphetamine (for conversion) increased after the FDA formally requested an increase based on shortage data.[5] This incident demonstrates that the safety valve can function—but only after supply stress has persisted long enough to trigger pressure from patients, public health officials, and congressional oversight measures.
Human Costs of a Shortage
The FDA first publicly acknowledged an Adderall shortage in October 2022 and kept patients updated as constraints spilled into other stimulants, especially once Vyvanse demand rose after generics launched in 2023.[6] Meanwhile, the Department of Health and Human Services chronicled record-level U.S. drug shortages more broadly, underscoring that persistent gaps harm access and raise costs overall.[7]
Congress also took notice of the issue and, in 2023, outlined the federal levers for addressing Adderall shortages.[8] Additionally, in 2024, Congress pressed the DEA on how it weighs medical need against diversion in its quota decisions.[9] Policymakers signaled that quota transparency and coordination with the FDA must improve for the benefit of both prescribers and patients.
What the Law Requires and What It Doesn’t
The CSA directs the Attorney General to set quotas at levels “necessary to meet the estimated medical, scientific, and research needs of the United States.”[10] Regulations even provide measures to set quotas in dosage-form terms to avoid overproduction, shortages, and diversion.[11] So on paper, the regime is supposed to balance access and control. However, in practice, the balance has shifted towards heavy diversion control, characterized by unclear methods and lengthy lags before adjustments hit the market.
The DEA and the FDA jointly acknowledged this in an August 2023 statement, stating that supply problems stem from many factors, outside of diversion, such as supply chain issues and demand swells. The FDA sees clinical demand, and the DEA controls the legal ceiling on active ingredient production. When those perspectives misalign, patients feel it at the pharmacy counter. While executive agencies do not manufacture drugs or compel output, they must coordinate closely with manufacturers to reduce the impact of shortages.[12]
Where the Current Framework Falls Short
Current medical-need research is opaque and lacking. The statute’s “estimated medical…needs” language does not specify methodology.[13] Neither DEA’s annual APQ notices nor individual-quota adjudications consistently disclose how prescribing trends, shortage data, and inventory levels are weighted.[14]
DEA policy gives diversion priority over accessibility. Post-opioid crisis rules elevated “potential for diversion” in quota setting.[15] That makes sense for harm reduction, but stimulants are not opioids, and shortages impose their own health risks, such as school and work impairment, driving hazards for narcolepsy patients, and mental-health setbacks for those dealing with binge eating disorder.
Reforms That Preserve Control and Increase Accessibility
First, make medical-need findings explicit and data-driven. Congress should amend 21 U.S.C. § 826 to require the DEA to use and publish current-year demand inputs from the FDA (utilization, prescriptions filled, new approvals, pediatric use), along with inventory and backorder metrics.
Second, formalize the FDA’s role in stimulant quotas. Congress can give the FDA a consultation trigger for Schedule II stimulant APQs and individual quotas, especially during declared shortages under 21 U.S.C. § 356c (drug shortage statute).[16] The 2024 lisdexamfetamine order already reflects de facto reliance on FDA shortage determinations. Thus, the law should make that coordination proactive, not emergency-only.
Third, improve oversight and public accountability. Congress should continue bipartisan oversight, such as requesting methodology, inventories, and allocation rationales, so that it can see whether rising diagnoses and legitimate prescribing are reflected in quota levels.[17]
Addressing the Diversion Concern
Yes, stimulant misuse exists. However, quotas are a crass instrument for a limited problem. Targeted tools such as prescription drug monitoring programs (PDMPs), telehealth prescribing standards, and audits of high-risk prescribers directly mitigate misuse while keeping legitimate patients supplied.
The quota system is a vital guardrail against diversion. However, when that guardrail obstructs access, it leaves classrooms unsettled, workers struggling, and patients rationing medication to stay afloat. The next step is to reform the framework so the response during the subsequent shortage is timely, transparent, and tuned to the real-world demand. The government owes patients responsible oversight that keeps medicine available, so evidence-based ADHD, Narcolepsy, and BED care can continue uninterrupted.
[7] Rini Beleche & Allison Kolbe, Medical Product Shortages in the United States: Demographic and Geographic Factors and Impacts, U.S. Dep’t of Health & Hum. Servs., (July 15, 2024), https://aspe.hhs.gov/reports/medical-product-shortages.
[8] Lisa Sacco, Cong. Rsch. Serv., The Federal Role in Addressing the Adderall Drug Shortage (May 4, 2023).
Influenza pandemics, by nature unpredictable and periodic, pose significant threats to human health and global economic stability.[1] Since January 2022, over 160 million birds across all 50 states in the U.S. have tested positive for avian influenza.[2] By 2025, more than 30 million egg-laying hens were culled, with Ohio alone accounting for 13.5 million of these losses.[3] These disruptions have contributed to soaring egg prices, with wholesale prices reaching record highs. [4] Alarmingly, 70 individuals in the U.S. contracted avian influenza, predominantly farmworkers exposed to infected poultry, with one fatality reported.[5] While no evidence of person-to-person transmission has been found, the unpredictability of such pandemics and the heightened risks to farmworkers have raised concerns about occupational exposure.[6] Given these risks, swift containment and eradication of avian influenza outbreaks are essential not only to protect poultry populations but also to safeguard worker health, prevent human infections, and stabilize the broader agricultural economy.
This paper examines the economic and health implications of avian influenza on agricultural workers, assesses federal and state policy responses, and proposes targeted policy measures to enhance preparedness and protect workers. Section II provides an overview of avian influenza, including its various strains and transmission pathways, with an emphasis on the increased vulnerability of labor populations, particularly those in agriculture, and the heightened health risks they face. Section III analyzes federal interventions, focusing on the roles of agencies like the USDA, CDC, and OSHA in safeguarding worker health, managing outbreaks, and minimizing disruption in agricultural production. Section IV reviews state-level responses, identifying best practices in regions like California, where statewide regulations have proven effective, and highlighting disparity in enforcement and resources, particularly in rural and underfunded areas. Section V draws on lessons from past zoonotic outbreaks, proposing comprehensive reforms that not only promote coordinated and equitable protection for essential workers but also enhance policy enforcement, ensuring that future outbreaks are met with robust and proactive solutions.
II. The Resurgenceof H5N1 in the United States.
The resurgence of highly pathogenic avian influenza (HPAI) in the United States posed significant public health risks, particularly to those in close contact with infected animals.[7] In 2009, advances in the development of antivirals and experiences with H5N1 infections in poultry and humans,[8] contributed to a growing understanding of influenza pandemics. The emergence of the swine influenza virus that same year provided further insights into the behavior and spread of pandemic influenza strains,[9] which helped shape the requirements for pandemic preparedness and response. [10]
H5N1 is a highly contagious disease in birds caused by influenza A viruses.[11] These viruses are primarily found in specific species of waterfowl and shorebirds.[12] Low pathogenic avian influenza (LPAI) and highly pathogenic avian influenza (HPAI)spread among poultry and wild birds.[13] LPAI causes mild respiratory symptoms, while HPAI A poses a significant zoonotic threat to birds, dairy cattle, and humans globally.[14]
In 2015, the HPAI H5N1 was first detected in a sample collected from wild migratory birds in the United States.[15] The virus later reemerged in agricultural poultry stocks across the U.S. in 2022, leading to widespread outbreaks.[16] On February 8, 2022, the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (USDA APHIS) Veterinary Services confirmed the presence of H5N1 in a commercial poultry flock in Dubois County, Indiana. [17] By February 24, the virus had spread to commercial poultry operations and backyard flocks across seven states: Indiana, Kentucky, Virginia, New York, Maine, Delaware, and Michigan.[18] The first confirmed human case of H5N1 linked to the 2022 outbreak was reported in 2023, involving direct exposure to infected poultry.[19]
Following the detection of HPAI H5N1 in 2022, the USDA APHIS initiated the preparation of a draft Environmental Assessment and a draft Finding of No Significant Impact (FONSI), pursuant to the National Environmental Policy Act (NEPA).[20] The Environmental Assessment, issued in April 2022, evaluated the potential environmental impacts of USDA’s proposed emergency response activities, including depopulation of infected flocks, disposal of carcasses, cleaning and disinfection of premises, and implementation of quarantine measures.[21] These documents provided the legal foundation for Veterinary Services to implement coordinated emergency actions across the seven states.[22] The final Environmental Assessment, titled Emergency Response for HPAI Outbreaks in Seven States, together with the final FONSI, was published in September 2022.[23] Despite these measures, HPAI outbreaks continued to affect commercial poultry, backyard flocks, and dairy cattle throughout the United States.
(a) Occupational Health Risks and Economic Consequences
Workers in the poultry industry face elevated risks of H5N1 infection due to frequent exposure to contaminated birds, surfaces, and environments.[24] Infected birds shed the virus through their saliva, mucus, and feces, creating multiple pathways for human infection,[25] primarily through inhalation of aerosolized particles or contact with contaminated surfaces.[26] Those most at risk include individuals employed across various sectors of poultry production, such as poultry farmers and their staff, service technicians at poultry-processing plants, caretakers at poultry facilities, workers in layer barns and live bird markets, employees handling chicks at egg production sites, personnel engaged in disease control and eradication efforts, and individuals involved in the bird-fighting industry.[27]
Symptoms of HPAI H5N1 in humans can range from mild, such as eye redness or a mild cough, to severe, including pneumonia requiring hospitalization.[28] Common symptoms include fever, sore throat, nasal congestion, muscle aches, and shortness of breath, while less common manifestations may involve diarrhea, nausea, or even seizures.[29] While globally, H5N1 carries a high case fatality rate,[30] the number of deaths in the United States remain low; as of 2025, fewer than 10 confirmed human cases have resulted in death.[31]
Beyond the health hazards, HPAI outbreaks have caused economic hardship for farmworkers.[32] The quarantine measures, the culling of diseased birds, and the closure of poultry farms all result in job losses and shortened working hours, leaving many people without consistent income.[33] While some workers may be eligible for compensation through federal or state programs, there are notable gaps in these procedures, particularly for workers in control zones (designated areas surrounding infected premises where movement is restricted to contain disease spread) who do not have contaminated flocks but suffer financial losses.[34]
The economic burden of the H5N1 outbreak extends beyond individual workers, by affecting entire agricultural operations and contributing to rising food prices and supply chain instability.[35] In the poultry sector, culling over 150 million chickens to contain the virus has reduced the egg supply by 7–10%, driving retail prices as high as $9 per dozen and causing intermittent shortages in grocery stores.[36] Smaller operations, such as Kakadoodle Farm in Illinois, illustrate the human and financial toll: the farm lost 3,000 pasture-raised hens and over $100,000 in projected revenue.[37] In the dairy industry, H5N1 has been detected in cattle herds across at least nine states.[38] This results in short-term milk production declines of 10–20% and higher operational costs related to testing, movement restrictions, and biosecurity upgrades.[39] Although dairy cows are not culled, the economic impact remains considerable, particularly given the industry’s already thin profit margins. These disruptions contribute to inflationary pressure on food prices and expose structural vulnerabilities in the U.S. food system.[40]
III.Federal Policy Responses to Avian Influenza
(a) USDA’S APHIS And Veterinary Service
Federal policies have played a critical role in mitigating the impacts of H5N1 on public health, worker safety, and animal welfare. The USDA, through its APHIS and Veterinary Services, is responsible for protecting the health, quality, and marketability of U.S. animals and animal products by preventing, controlling, and eliminating infectious diseases.[41] In response to the H5N1 threat, APHIS conducts virus surveillance among commercial and backyard poultry, wild birds, and dairy cattle, and performs confirmatory testing for HPAI H5N1 in domestic and wild animal populations.[42] APHIS has measures to prevent the interstate transmission of H5N1 and other livestock diseases.[43]
APHIS has developed a robust emergency response strategy to combat avian influenza.[44] This response includes surveillance by Wildlife Services in wild bird populations and Veterinary Services in domestic flocks through the National Poultry Improvement Plan (NPIP).[45] Guided by the HPAI Preparedness and Response Plan, APHIS coordinates rapid actions like depopulation, disinfection, and quarantine.[46] To minimize environmental impact, it conducts assessments under NEPA and ensures proper carcass disposal.[47] As outbreaks expanded, APHIS has scaled its operations to a nationwide level, offering technical aid, indemnity payments, and federal response teams in close collaboration with state and tribal partners, demonstrating the magnitude of the effort.[48]
Beyond immediate containment and surveillance efforts, the USDA has invested heavily in long-term strategies to prevent and mitigate the ongoing spread of HPAI H5N1.[49] The agency announced a $100 million research initiative focused on developing vaccines, enhancing biosecurity protocols, and strengthening disease preparedness.[50] As part of this effort, biosecurity assessments have been conducted at over 130 commercial poultry facilities, with particular attention to the most at-risk egg-laying farms.[51]
In parallel, the USDA has increased compensation rates for affected poultry farmers and provided financial support for implementing biosecurity improvements.[52] Notably, these measures have contributed to a nearly 50% reduction in egg prices, offering some relief to both producers and consumers. The research initiative is being carried out in collaboration with agencies such as the CDC and FDA.[53]
(b) Center for Disease Control.
The CDC serves as the nation’s primary science-and data-driven organization dedicated to safeguarding public health.[54] Among its functions, the CDC leads the U.S. influenza surveillance system in collaboration with state, local, and territorial health departments.[55] This system has played a vital role in monitoring infectious diseases such as HPAI. By collecting data from public health laboratories, healthcare providers, and other sources, the surveillance network tracks influenza activity, identifies circulating viruses, detects changes in viral strains, and assesses the disease’s impact on illness, hospitalizations, and deaths.[56]
The CDC has expanded its surveillance systems to monitor individuals exposed to infected poultry, dairy cattle, and other animal species, while also providing diagnostic and laboratory support to state and local health departments through its Influenza Division.[57] In addition, the agency is leveraging its National Syndromic Surveillance Program to track flu-like illnesses and is conducting serology studies in states such as Colorado and Michigan to evaluate exposure levels among farmworkers.[58] These findings directly inform federal and state responses, guiding public health interventions such as quarantine measures and vaccine distribution efforts.
CDC has also joined forces with the USDA, FDA, the Administration for Strategic Preparedness and Response, state public health and animal health officials, and other partners to implement the One Health approach.[59] This collaborative strategy is gaining widespread recognition both in the United States and internationally, particularly for its effectiveness in addressing zoonotic diseases.[60] Through One Health, the CDC brings together experts from a range of fields—including human and animal health, environmental science, law enforcement, policymaking, agriculture, and community organizations—to monitor, control, and better understand how diseases spread among people, animals, plants, and the environment.[61] For example, specialists from the One Health Office organize Zoonotic Disease Prioritization Workshops to help countries allocate limited resources toward the most pressing zoonotic threats, such as HPAI H5N1, which poses a significant national concern.[62]
(c) The Occupational Safety and Health Administration
The Occupational Safety and Health Administration (OSHA), a federal agency within the U.S. Department of Labor established under the Occupational Safety and Health Act of 1970, plays a critical role in safeguarding workers from occupational exposure to HPAI H5N1.[63] OSHA fulfills its mission of safe and healthy working conditions by setting workplace standards and providing training, outreach, education, and assistance.[64] In response to the risks posed by HPAI H5N1, OSHA requires employers to conduct hazard analyses to identify workers at risk and implement appropriate control measures, including engineering controls, administrative practices, safe work procedures, and the use of personal protective equipment (PPE).[65] Specific PPE requirements include gloves, protective clothing, goggles, and respirators to minimize exposure to the virus.[66] Workers must also be trained to use PPE correctly, understand associated risks, and maintain hygiene practices such as regular handwashing and sanitization. Additionally, OSHA emphasizes the importance of protecting workers from heat stress associated with PPE use and ensuring the proper cleaning and disinfection of potentially contaminated areas to prevent further spread of the virus.[67]
IV. State and Local Responses to Avian Influenza Outbreaks
While federal agencies provide infrastructure and guidance, state-level policies vary widely in rigor and scope.
California remains the most proactive state, having implemented Title 8, Section 5199.1 of the California Code of Regulations to protect workers from aerosol-transmissible zoonotic diseases.[68] Through California and OSHA, the state has implemented measures requiring employers in high-risk sectors such as poultry farms, slaughterhouses, and diagnostic laboratories to provide N95 respirators, gloves, full-body protective gear, and eye protection.[69] These measures are further supported by mandatory sanitation protocols written safe work procedures, and medical monitoring for employees handling infected animals or working in quarantine zones.[70] The state also promotes workers’ rights through anti-retaliation laws, paid sick leave mandates, and workers’ compensation benefits for those who contract avian flu on the job. California’s approach exemplifies a public health and labor response that integrates occupational safety with disease containment.[71]
In New York, Governor Kathy Hochul has implemented movement restrictions and enforced live bird market closures to prevent further transmission of the virus.[72] Meanwhile, Michigan has rolled out a Highly Pathogenic Avian Influenza Dairy Surveillance Program to monitor milk samples for the H5N1 virus, with farmers receiving guidance on enhanced biosecurity practices. These state initiatives work in tandem with federal efforts, ensuring targeted protection for farmers and promoting swift containment of outbreaks.[73]
Delaware and Maryland have established a joint command structure to coordinate containment efforts, including the culling of infected birds, the enhancement of worker safety protocols, and the implementation of rigorous environmental sampling. This collaborative regional approach was particularly significant given the role of the Delmarva Peninsula as a major poultry-producing area for the eastern United States.[74] By working across state lines, Delaware and Maryland demonstrated the importance of rapid, unified action in high-risk agricultural zones to contain avian influenza outbreaks and safeguard both public health and the economy.[75]
Local agencies, like the Philadelphia Department of Public Health, are actively monitoring bird flu, coordinating with state and local health and animal health agencies to track human cases and contain the spread. The Philadelphia Department of Public Health engages in community outreach and distributes public resources to ensure affected populations are well-informed.[76]
Similarly, Georgia whose poultry industry is valued at approximately $6.9 billion, highlights the high economic stakes involved.[77] Following confirmed cases in Elbert County on January 17 and January 22, 2025, the Georgia Department of Agriculture instituted a statewide ban on poultry exhibitions, shows, swaps, meets, and sales, underscoring both the threat to commercial operations and the disruption of important cultural and economic activities.
While federal and state actors have shown urgency, the overall patchwork of occupational protections and biosecurity standards remains insufficient. California’s enforceable framework offers a scalable model for integrating public health and labor safety, but replication across states has been inconsistent. To address these disparities, the federal government should pursue a cohesive, nationally integrated strategy that includes a binding occupational health standard for zoonotic disease exposure, targeted compensation policies for affected workers, and robust coordination across CDC, USDA, OSHA, and state-level agencies. Such reforms would strengthen pandemic preparedness, reduce systemic inequities, and ensure that future outbreaks do not endanger the nation’s most vulnerable agricultural workers disproportionately.
V. Lessons from Previous Outbreaks and Policy Reform Strategies
Past public health crises, particularly the COVID-19 pandemic, have exposed significant systemic weaknesses in worker protection, emergency coordination, and economic resilience. These experiences provide essential lessons for designing more robust and adaptable response strategies to zoonotic threats like H5N1.
Strengthen Health and Safety Protocols
Occupational safety policies must move beyond voluntary guidance to protect workers in high-risk sectors such as the poultry industry. Outside California, currently the only state with a binding standard for zoonotic aerosol transmissible diseases, most protections are discretionary, leading to inconsistent implementation and avoidable risk. A mandatory federal standard is urgently needed for uniform safeguards, including access to PPE, routine health surveillance, strict sanitation protocols, and comprehensive biosecurity training. One immediate path forward is for OSHA to issue a temporary emergency standard under Section 6(c) of the Occupational Safety and Health Act, which permits rulemaking without notice and comment in cases of “grave danger.” Given the demonstrated threat of HPAI H5N1 in agricultural workplaces, such an action would create enforceable protection while long-term regulatory processes advance.
Expand Compensation and Support Systems
Federal compensation programs must be broadened to support all workers economically affected by avian influenza control measures, including those in designated control zones whose poultry flocks are not directly infected. The Healthy Poultry Assistance and Indemnification Act (HPAI Act), introduced in 2025, proposes financial compensation for producers who suffer losses due to depopulation orders.[78] Still, it does not yet include direct support for displaced workers. The bill has not been enacted; even if passed, it would still fall short of providing comprehensive relief. Workers in control zones may lose income due to suspended operations, movement restrictions, or employer cutbacks during quarantine periods—even if their specific flock remains healthy. A truly equitable policy must recognize that these workers bear economic risks imposed by disease control protocols and should receive income protection, paid quarantine leave, and access to emergency relief funds. Expanding the scope of compensation to include these at-risk workers would promote fairness, improve compliance with biosecurity measures, and reduce pressure on producers to resume operations prematurely.
Improve Coordination Between Federal, State, and Local Authorities:
While federal agencies such as the CDC and USDA have provided surveillance and policy guidance, implementing containment and communication strategies during the H5N1 outbreak has varied widely across states, exposing critical gaps in coordination.[79] For example, in Illinois, internal emails revealed confusion between public health and agriculture departments over which agency should report H5N1 cases in dairy cattle, resulting in delayed public communication.[80] In Michigan, conflicting approaches between health and agriculture officials led to inconsistent messaging regarding a second outbreak.[81] At the same time, Wisconsin’s response was initially hindered by a lack of Spanish-language communication despite the state’s predominantly Hispanic dairy workforce.[82] These incidents illustrate that while interagency collaboration exists in principle, fragmented communication protocols, unclear jurisdictional responsibilities, and insufficient localized planning still undermine the effectiveness of the national response. Strengthening coordination frameworks—not just encouraging collaboration—will be essential to ensure timely, equitable, and consistent worker protection during future zoonotic disease outbreaks.
These proposed strategies must be proactive, equity-centered, and responsive to the complex interplay between animal health, worker safety, and public health security. By institutionalizing these reforms, the U.S. can move beyond reactive containment toward a more resilient and just public health infrastructure.
[78]Healthy Poultry Assistance and Indemnification Act of 2025, S. 574, 119th Cong. (2025). As of April 2025, the Healthy Poultry Assistance and Indemnification Act (HPAI Act) has been introduced but not yet enacted. Its provisions focus on compensating producers for depopulated flocks, without addressing income protection for workers in affected control zones.
“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.
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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.
