Journal of Law and Public Policy Blog

Journal of Law and Public Policy Blog

Securities Litigation

Utilizing Confidential Witnesses in Securities Litigation

The Securities Exchange Act of 1934 was implemented to promote honest securities markets by affording investors a private cause of action for fraudulent market practices.[1] Section 10(b) of the Securities Exchange Act makes it unlawful to use or employ any manipulative or deceptive device “in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors,” while Rule 10b-5 makes it unlawful to make an untrue statement of material fact or omit a material fact necessary to make statements not misleading.[2] In practice, confidential witnesses serve as a practical tool to prosecute this type of corporate misconduct. Confidential witnesses provide first-hand information that connects a corporation’s public statements to the corporation’s internal reality. As such, confidential witnesses are not a loophole in securities litigation, and courts should not treat them as such—courts should avoid requiring confidential sources to be named at the pleading stage and instead apply a holistic approach that calibrates any discount based on the facts pled about the witness’s knowledge, job position, and other reliability criteria.

Though investors are afforded a private right of action, plaintiff-investors face a heightened pleading standard to pursue their claim. Investors must allege each element of a violation under Section 10(b) and Rule 10b-5, including that the corporate defendant acted with the requisite “scienter.”[3] The United States Supreme Court has defined “scienter” as a mental state of intent to deceive, manipulate, or defraud.[4] The Private Securities Litigation Reform Act of 1995 (“PSLRA”) created a heightened pleading standard for scienter by requiring plaintiffs to “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.”[5] PSLRA’s heightened pleading standard was enacted for dual purposes: to curb frivolous, lawyer-driven litigation, while preserving a plaintiff-investor’s ability to recover on meritorious claims.[6]

The United States Supreme Court in Tellabs v. Makor Issues & Rights clarified how courts should determine whether a complaint sufficiently pleads a “strong inference” of scienter in securities litigation.[7] To qualify as “strong,” an inference of scienter must be “more than merely plausible or reasonable – it must be cogent and at least as compelling as any opposing inference of nonfraudulent intent,” but need not be irrefutable.[8] As part of the court’s inquiry, scienter must be assessed holistically while weighing the plausible, nonculpable explanations for the defendant’s conduct as well as inferences favoring the plaintiff.[9]

To sufficiently plead scienter under PSLRA’s heightened pleading standard, plaintiffs must often uncover internal company information.[10] In turn, plaintiffs often receive information from former company employees. Former employees’ own recollections are especially useful to provide the particularized allegations needed in a securities complaint to survive a motion to dismiss.[11] For example, a former employee with a significant corporate title may be able to demonstrate the company knew its public statements were contradicted by the internal reality of the company or provide corroborating reports that its public statements were false.[12] Current or former employees often bridge the gap between vague allegations of a corporate defendant’s access to information and an inference of knowledge to demonstrate scienter.[13]

Considering the nature of current or former employees’ allegations against corporations, the individual who provides information is typically named anonymously in the plaintiff-investor’s complaint which gives rise to the term “confidential witness.”[14] How courts treat confidential witness allegations has become a debated topic within securities litigation, particularity in light of its heightened pleading requirements. Namely, some circuits apply an automatic discount against confidential witness allegations due to reliability concerns associated with confidentiality while other circuits apply a discount in proportion to the facts alleged about the confidential witness’s knowledge, job position, and other criteria supporting the reliability of their allegations.

Though PSLRA requires plaintiffs to “state with particularity facts giving rise to a strong inference of scienter,” it does not mention the source of these facts.[15]  Without further guidance regarding confidential sources, courts have found that “the reading of the PSLRA rejects any notion that confidential sources must be named as a general matter.”[16] As such, courts have looked to the holistic review of securities complaints promoted in Tellabs for guidance. For example, the Second Circuit has determined that “a complaint may rely on information from confidential witnesses if they are described in the complaint with sufficient particularity to support the probability that a person in the position occupied by the source would possess the information alleged.”[17]

The intent behind enacting PLSRA reinforces this treatment. In enacting PSLRA, Congress demonstrated twin goals of preventing frivolous litigation yet allow meritorious securities fraud claims to proceed.[18] Though Congress heightened the pleading standards for securities complaints, it did not create an insurmountable bar for plaintiffs.[19] An automatic discount on confidential witness allegations or requiring the confidential witness to be named conflicts with these goals because it creates an additional barrier for plaintiffs to overcome. The inherent tension in balancing two goals cannot be evaded by adopting a categorical discount.[20]

Requiring plaintiffs to name confidential sources as a general matter also may deter plaintiffs from bringing meritorious claims. As the First Circuit has explained, employees or others in possession of important malfeasance may be discouraged from stepping forward if they must be identified at the earliest stage of the lawsuit.[21] The Second Circuit has further recognized this consideration in stating that requiring plaintiffs to name their confidential sources “serves no legitimate purpose while it could deter informants from providing critical information [. . .] or invite retaliation against them.”[22] Any deterrence against reporting fraudulent market practices directly contradicts the Security Exchange Act’s purpose of ensuring market honesty.

Information from confidential witnesses has proven to be particularly important in cases involving the corporate fraud that the Securities Exchange Act aims to prevent.[23] Corporate employee-informants, also known as whistleblowers, play an essential role in reporting wrongdoing that could be impossible to detect otherwise.[24] Studies have shown that whistleblowers are generally better at uncovering corporate fraud than government supervisory authorities acting alone.[25] For example, in 2016, Congress reported that over the span of four years, whistleblowers uncovered 54.1% of fraud in public companies versus the 4.1% of fraud detected by the Securities and Exchange Commission and external auditors.[26] Accordingly, any deterrence of whistleblower information will have detrimental implications on exposing corporate fraud.

Finally, the frequency of whistleblower retaliation helps demonstrate that maintaining confidentiality at the outset of litigation may improve judicial efficiency by avoiding whistleblower-retaliation litigation. A study has found that 82% of a whistle-blower population had been fired, quit their job due to duress, or had significantly altered responsibility due to their whistleblowing activity.[27] Retaliation is not limited to current employees either. Courts have noted that former employees may face retaliation as prospective employers often require references from prior employers.[28]

In total, the use of confidential witnesses in securities litigation is indispensable to promote an honest market. Considering the dual purposes of the heightened pleading standard in securities litigation, courts should not create an additional hurdle for plaintiffs to overcome by requiring confidential sources to be named. Instead, courts should utilize a holistic approach of applying a discount, if any, in proportion to the facts alleged about the confidential witness’s knowledge, job position, and other criteria supporting the reliability of their allegations.

[1] Sally J.T. Necheles, Cause of Action for Securities Fraud Under Section 10(b) of 1934 Securities Exchange Act and/or Rule 10b-5, 74 Causes of Action 2d 567, §2 (Updated March 2026), https://1.next.westlaw.com/Document/I2d1ab0e189a211e68f0ee788d95a4213/View/FullText.html?originationContext=typeAhead&transitionType=Default&contextData=(sc.Default)/.

[2] 17 C.F.R. § 240.10b-5(b).

[3] Ariel S. Lichterman, Confidential Witnesses: The Reform Act and the Battle at the Pleading Stage, 8 Cardozo Pub. L. Pol’y & Ethics J. 609, 617 (2010).

[4] See Ernst & Ernst v. Hochfelder, 425 U.S. 185 (1976).

[5]15 U.S.C. § 78u–4(b)(2); Tellabs v. Makor Issues & Rights, Ltd., 551 U.S. 308, 311 (2007).

[6] Tellabs, 551 U.S. at 309.

[7] Id. at 314.

[8] Id. at 313–314.

[9] Id. at 323–324.

[10] Use of confidential witnesses in securities fraud pleading, 26A Sec. Lit. Damages § 24:53.

[11] Id.

[12] Oklahoma Firefighters Pension & Ret. Sys. v. Six Flags Ent. Corp., 58 F.4th 195, 215-216 (5th Cir. 2023).

[13] Use of confidential witnesses in securities fraud pleading, 26A Sec. Lit. Damages § 24:53.

[14] Id.

[15] 15 U.S.C. § 78u–4(b)(1)(2).

[16] Novak v. Kasaks, 216 F.3d 300, 313 (2nd Cir. 2000); Cal. Pub. Emps.’ Ret. Sys. v. Chubb Corp., 394 F.3d 126, 147 (3rd Cir. 2004) (the plain language of the PSLRA “is far from commanding that confidential sources must be named as a general matter”).

[17] Novak, 216 F.3d at 313.

[18] In re Cabletron Sys. Inc., 311 F.3d 11, 30 (1st Cir. 2002).

[19] Collier v. Moduslink Global Solutions, Inc. 9 F.Supp.3d 61, 69 (D. Mass. 2014).

[20] Cabletron, 311 F.3d at 30.

[21] Id.

[22] Novak, 216 F.3d at 314.

[23] Ethan D. Wohl, Confidential Informants in Private 17 Litigation: Balancing Interests in Anonymity and Disclosure, Fordham J. Corp. & Fin. L. 551, 555 (2007).

[24] Id.

[25] Christina P. Skinner, Whistleblowers and Financial Innovation, 94 N.C. L. Rev. 861, 892 (2016).

[26] Id. at 892.

[27] Gideon Mark, Recanting Confidential Witnesses in Securities Litigation, 45 Loy. U. Chi. L. J. 575, 597 (2014).

[28] Id.

August 31, 2026 by
Call for Papers

Call for Papers: “Minnesota: State and Local Government in a Changing Federalist System”

The University of St. Thomas School of Law Journal of Law and Public Policy invites paper proposals for its Symposium on “Minnesota: State and Local Government in a Changing Federalist System,” to be held on February 12, 2027, via a hybrid model over Zoom and at the University of St. Thomas School of Law in Minneapolis, Minnesota. This interdisciplinary event aims to bring together scholars, practitioners, and policymakers to explore and analyze the changing relationship between state and federal government.

Minnesota has become a focal point in escalating tensions between state and federal authority. Federal immigration enforcement operations, DOJ subpoenas targeting state officials and challenging the judiciary, the weaponization of funding tied to Medicaid and other programs, and environmental fights have each tested the boundaries of American federalism. Even smaller disputes, such as the President blaming Minnesota for a cyberattack on its water systems, reflect a broader pattern in which the working relationship between the state and federal government has deteriorated. This symposium invites papers exploring these tensions across four areas:
• Regulatory Authority
• Sovereignty and State/Federal Conflicts
• Funding and Coercion
• The Role of the Judiciary

We welcome proposals that engage critically, creatively, and constructively with the symposium theme.

Submission Guidelines & Timeline:
Proposals of 250 to 500 words are invited to be submitted by October 30, 2026, and should outline the paper’s main thesis, methodology, and conclusions. Please submit proposals to University of St. Thomas School of Law Professors Charles J. Reid, Jr. (cjreid@stthomas.edu) and Jennifer Cornell (corn2198@stthomas.edu) as well as the Journal of Law and Public Policy’s Editor-in-Chief Trevor Loeb (loeb1528@stthomas.edu) and Managing Editor Connor Edrington (cedrington@stthomas.edu).

Proposal Deadline: October 30, 2026
Notice of Acceptance: November 30, 2026
Symposium Date: February 12, 2027
Full Paper Submission: March 31, 2027

Review and Publication:
Accepted proposals are expected to result in full papers, which will be considered for publication in the University of St. Thomas Journal of Law and Public Policy. Authors may participate in person or via Zoom. Travel grants may be available, and the Journal will assume costs for in-person speakers.

Contact Information:
For questions or additional information, please contact Sophia Perri at seperri@stthomas.edu or Sydney McGinn at sydney.mcginn@stthomas.edu.
We look forward to your submissions and to fostering an engaging discussion on this timely and local subject.

August 24, 2026 by
Uncategorized

The Missing Plaintiff in Federal Indian Land Law

Introduction

In North Dakota, a pipeline was still running across Native trust land—weeks, then months after its easement had expired.[1] The individual landowners whose land it crossed sued for trespass under federal common law.[2] The Eighth Circuit shut them down.[3] Not because the pipeline had a right to be there, but because these landowners had no federal cause of action to enforce their own property rights.[4]

The reason comes down to the source of those rights. The landowners hold interests created by federal allotment statutes,[5] the legislation that carved tribal lands into individual parcels during the allotment era.[6] That statutory origin places them outside the federal common law cause of action the Supreme Court recognized in County of Oneida v. Oneida Indian Nation (“Oneida II”), which applies to tribal land rights grounded in aboriginal title, not individual allottees.[7] As a result, although federal law recognizes the landowners’ property interests,[8] it offers them no direct mechanism to enforce those interests in court. Instead, enforcement is left to the federal government, which may or may not choose to act.[9]

Although Chase v. Andeavor Logistics concerns a specific pipeline, the case reveals a much broader doctrinal gap in federal Indian land law.

The Doctrinal Background

Federal Indian law draws a fundamental distinction between two sources of Native American property rights. Tribal land rights are rooted in aboriginal title, a tribe’s recognized claim to land based on occupancy since time immemorial.[10] Individual trust land, in contrast, is largely a product of the allotment era when Congress divided tribal territories into individual parcels under statutes like the General Allotment Act (commonly known as the Dawes Act).[11] These allotments created property interests defined by federal statute, rather than historical occupancy.[12] The United States retains legal title while individual Native Americans hold equitable interests—the right to use and benefit from the land, but not legal ownership.[13]

That distinction determines who can sue. In Oneida II, the Supreme Court recognized a federal common law cause of action allowing tribes to vindicate their possessory rights in court.[14] That cause of action was grounded in the unique federal status of aboriginal title, the idea that tribal land rights predate and exist independent of any statute.[15] Individual allotment rights, arising from congressional legislation rather than historical occupancy, were never understood to carry the same enforcement mechanism.

Chase v. Andeavor Logistics

In January 2026, the Eighth Circuit decided Chase v. Andeavor Logistics, a dispute over a pipeline that continued operating across Native trust land after its easement expired.[16] The individual Native American allottees who owned the land sued the pipeline company for trespass under federal common law, arguing the company had no right to remain once the easement lapsed.[17]

The court rejected their claim.[18] The allottees’ property interests arose from federal allotment statutes, not from aboriginal title.[19] That distinction was dispositive: the federal common law cause of action recognized in Oneida II exists for tribes vindicating aboriginal title, not for individual allottees whose rights derive from legislation.[20] The court found additional support in the Indian Right-of-Way Act,[21], which authorizes the Secretary of the Interior to grant and regulate rights-of-way across trust land but provides no private right of action for individual landowners.[22] The United States holds legal title to trust land and serves as both trustee and easement regulator. Federal law, in other words, presumes the government will act on the landowners’ behalf.

The Gap

Chase exposes a structural problem. Individual Native landowners whose property is held in federal trust have no direct mechanism to enforce their own rights in court.[23] Unauthorized use of their land is not itself enough. Without a federal cause of action, there is nowhere to take the claim. Enforcement instead falls to the federal government.[24] As trustee, legal titleholder, and regulator of rights-of-way, the United States controls the litigation. When the government declines to act, delays enforcement, or pursues different strategic objectives, the landowners themselves have limited recourse.

This tension has a name in federal Indian law. The government owes fiduciary duties to individual Native American landowners.[25] In United States v. Mitchell, the Supreme Court held that statutes governing allotted land create an enforceable trust relationship, requiring the United States to manage those interests in the beneficiaries’ favor.[26] Yet that same government is the entity that decides whether to enforce the landowners’ rights at all.

The fiduciary and the gatekeeper are the same actor. This creates a mismatch within federal Indian law. Tribal land rights, particularly those grounded in aboriginal title, are supported by well-established federal remedies that allow tribes to vindicate their interests directly in court.[27] In contrast, individual allottees hold recognized property interests but cannot enforce them without federal intervention.[28] The difference is not about the legitimacy of their property interests—both are recognized under federal law—but about who is permitted to defend them.

What Now?

The implications of this enforcement gap extend beyond a single pipeline dispute. Energy infrastructure routinely crosses individually allotted trust land,[29] and as development pressures increase, so will disputes over expired easements, unauthorized use, and compensation. Under the current framework, individual landowners cannot address those disputes themselves.[30] They remain dependent on federal action to take up the problems, even when their own property interests are directly affected.

That is a consequential gap. Property rights traditionally include not just the right to possess land, but the right to exclude others and seek redress when that right is violated.[31] A property interest the owner cannot personally enforce is, in practice, a diminished one.

At a minimum, this doctrinal framework invites reconsideration. Courts could revisit the distinction between aboriginal title and statutory allotment rights to determine whether the Oneida II cause of action should extend to individual allottees. Congress could clarify enforcement mechanisms available to individual landowners or amend the Indian Right-of-Way Act to provide individual landowners a private right of action. Absent such changes, the gap between recognized rights and available remedies will persist.

If tribes can enforce their land rights directly in federal court, should individual Native landowners—whose interests are equally recognized by federal law—truly be left without the same protection? Until Congress or the courts confront that question directly, the gap Chase exposed will remain.

[1] Chase v. Andeavor Logistics, L.P., 165 F.4th 1102, 1110 (8th Cir. 2026).

[2] Id. at 1108, 1112.

[3] Id. at 1116, 1118.

[4] Id.

[5] Id. at 1116.

[6] Id. at 1113.

[7] Cnty. of Oneida v. Oneida Indian Nation, 470 U.S. 226, 235 (1985) [hereinafter Oneida II].

[8] Chase, supra note 1, at 1116.

[9] Chase, supra note 1, at 1117.

[10] U.S. v. Santa Fe Pac. R.R. Co., 314 U.S. 339, 346 (1941); Cherokee Nation v. Georgia, 30 U.S. 1, 28 (1831).

[11] Dawes Act, ch. 119, 24 Stat. 388 (1887) (current version at 25 U.S.C. § 331 et seq.).

[12] See, e.g., Cnty. of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 502 U.S. 251, 254 (1992).

[13] Felix S. Cohen, Handbook of Federal Indian Law § 18.04.

[14] Oneida II, supra note 7 at 234–35.

[15] Oneida Indian Nation v. Cnty. of Oneida, 414 U.S. 661, 668–69 (1974).

[16] Chase, supra note 1, at 1109.

[17] Chase, supra note 1, at 1112.

[18] Chase, supra note 1, at 1117–18.

[19] Chase, supra note 1, at 1114.

[20] Oneida II, supra note 7, at 235–36; Chase, supra note 1, at 1116.

[21] Chase, supra note 1, at 1118.

[22] 25 U.S.C. § 323.

[23] 25 U.S.C. § 323; Chase, supra note 1, at 1118.

[24] Chase, supra note 1, at 1116–18.

[25] U.S. v. Mitchell, 463 U.S. 206, 225–26 (1983).

[26] Id.

[27] See Oneida II, supra note 7, at 235–36.

[28] See Chase, supra note 1, at 1118.

[29] U.S. Dep’t of Energy & U.S. Dep’t of the Interior, Report to Congress: Indian Land Rights-of-Way Study (May 2007), https://www.energy.gov/oe/articles/epact-2005-indian-lands-rights-way (noting the role of pipelines and transmission infrastructure across tribal lands).

[30] Chase, supra note 1, at 1118.

[31] Kaiser Aetna v. U.S., 444 U.S. 164, 176 (1979).

July 1, 2026 by
Intellectual Property

Can You Own an Aesthetic? Why Influencer Branding Deserves Legal Protection

In 2024, the internet erupted over what many dismissed as a petty feud between two “beige influencers.” Headlines like Should You Be Able to Copyright a Vibe? and Can You Ever Really Own an Aesthetic? flooded social media feeds. But beneath the mockery of the so-called “sad beige aesthetic” lawsuit—Sydney Gifford v. Alyssa Sheil—lies a serious and largely unresolved legal question: can the overall aesthetic of an influencer’s social media page receive protection under U.S. intellectual property law?

The short answer, under current law, is likely not. But it should.

The Rise of the Influencer Economy

To understand why this matters legally, you first have to understand the scale of what’s at stake. The influencer market was worth $1.7 billion in 2016. By 2022, it had exploded to $16.4 billion, and Forbes projects the creator economy will reach nearly $500 billion by 2027.[1] As of December 2025, more than 207 million content creators exist worldwide, with 162 million in the U.S. alone.[2] Over half of creators now consider content creation their full-time job.

Consumers, particularly young women, are driving this growth. A 2022 Pew Research survey found that 77% of women ages 18–29 follow influencers on social media, and 50% had purchased something after seeing an influencer post about it.[3] What drives those purchases isn’t just the product—it’s the influencer’s aesthetic, the carefully curated color palettes, composition styles, and visual consistency that signal trust and authorship. As one legal commentator put it: “An influencer’s aesthetic is often their most valuable business asset. It drives engagement, attracts sponsorships, and distinguishes one creator from countless others operating in the same space.”[4]

Alix Earle is the prime example. Brands don’t partner with her simply because she’s famous—they partner with her because of the specific, recognizable tone and aesthetic she’s built. Forbes even coined the term the “Alix Earle Effect” to describe her ability to sell out products through the power of her personal brand alone.[5] In this sense, influencers aren’t just endorsers—they are the brand.

The Lawsuit That Changed the Conversation

Sydney Gifford and Alyssa Sheil met in December 2022. Shortly after, Sheil’s social media presence transformed dramatically, shifting to a neutral, minimalist aesthetic strikingly similar to Gifford’s. On April 22, 2024, Gifford filed suit, alleging eight claims including trade dress infringement, copyright infringement, and misappropriation of likeness.[6]

The most compelling part of Gifford’s complaint was a seventy-page exhibit of side-by-side comparisons: Gifford posting a photo, then Sheil posting nearly the same photo, same products, same angles, same aesthetic, shortly after. In one instance, Gifford wore an unusual combination of a two-piece Amazon set, cowboy boots, a flower necktie, and unique glasses. Sheil posted an almost identical look days later.[7] Coincidence seems implausible across seventy examples.

Sheil’s defense? The “clean girl” aesthetic isn’t Gifford’s invention—it’s a widely used social media trend, and influencers adapt trends by nature.[8] Her legal answer, which opened with a Kim Kardashian quote, argued that because her photos weren’t identical copies, no actionable infringement occurred. The Magistrate Judge acknowledged the case “appear[ed] to be the first of its kind,” and recommended allowing several of Gifford’s claims to proceed.[9] But before the case could make new law, Gifford dropped the suit citing that it was too expensive, and she had just had a baby. The legal question remains wide open.

Why Current IP Law Falls Short

The reason Gifford’s claims were so difficult isn’t that copying didn’t happen, the visual evidence suggests it clearly did. The problem is that existing intellectual property doctrines were not built for digital aesthetics.

Copyright protects specific fixed expressions—a photograph, a video, a piece of text. It does not protect an overall aesthetic, a color palette, or a “vibe.” An influencer can copyright individual posts but not the cohesive visual identity that makes their brand recognizable.[10]

Trademark protects discrete source identifiers—logos, names, and slogans. It doesn’t cover the broader visual atmosphere of an online presence.

Trade dress is the most promising option. Under § 43(a) of the Lanham Act, trade dress protects the overall “look and feel” of a product or commercial space—think the Apple Store’s white minimalism or Starbucks’ green-and-wood interiors. To qualify, trade dress must be distinctive, nonfunctional, and its imitation must create a likelihood of consumer confusion.[11] The problem is that courts have historically confined trade dress to tangible commercial spaces, leaving digital creators in an awkward doctrinal gap.

Why Trade Dress Is Still the Best Path Forward

Despite its limitations, trade dress has a strong history of expanding to meet new commercial realities, and that history suggests influencer aesthetics could be next.

Courts once refused to protect anything beyond product labels and packaging. Then came Mastercrafters Clock & Radio Co. v. Vacheron & Constantin (1955), which extended protection to the visual design of a product itself.[12] In Two Pesos, Inc. v. Taco Cabana, Inc. (1992), the Supreme Court extended trade dress to the overall aesthetic of a restaurant, its décor, atmosphere, and interior design.[13] In Qualitex Co. v. Jacobson Products Co. (1995), the Court held that even a single color could be protected trade dress.[14] Most recently, in Blue Nile, Inc. v. Ice.com, Inc. (2007), a federal court refused to dismiss a trade dress claim over a jewelry website’s overall visual presentation, signaling willingness to consider digital aesthetics as protectable.[15]

Each expansion followed the same pattern: commerce evolved, consumers began associating new forms of visual presentation with a particular source, and courts adapted to protect that association. Influencer aesthetics fit that pattern exactly. Notably, influencer pages may actually be easier to protect under trade dress than traditional websites. Platforms like Instagram and TikTok standardize navigation, tabs, and architecture across all users, the influencer controls none of that. What they do control—color palettes, editing styles, composition choices, thematic consistency—is purely aesthetic and source-identifying, not functional. In that sense, an influencer’s page looks less like a website and more like the restaurant décor already protected in Two Pesos.

What Needs to Change

Scholars have proposed a specialized multi-factor test for digital trade dress infringement, adapted for the realities of social media.[16] Rather than applying website-era technical comparisons (pixel spacing or coding structures) that influencers can’t even control, courts would assess overall aesthetic similarity through factors like color scheme, visual tone, editing style, thematic consistency, and intentional copying. This framework fits influencer disputes better than it fits traditional websites. The evidence in Gifford v. Sheil, seventy pages of side-by-side comparisons, is exactly what such a test would rely on.

The Bigger Picture

The founding purpose of U.S. intellectual property law, enshrined in Article I, Section 8 of the Constitution, is to incentivize the creation of valuable works by securing limited rights for creators.[17] Without that protection, there is no incentive to invest time, creativity, and resources into building something original because someone else can copy it and profit without paying the cost of creation.

That is precisely what happened to Sydney Gifford. And until courts are willing to recognize influencer aesthetics as protectable trade dress, it will keep happening to creators who have built real commercial value through genuine creative labor.

The law has always expanded to protect what society values. The influencer economy, worth hundreds of billions of dollars and growing, is something society clearly values. It’s time for intellectual property law to catch up.

[1] Danielle Chemtob, Forbes Daily: The $250 Billion Influencer is Blooming, Forbes (Oct. 28, 2024), https://www.forbes.com/sites/daniellechemtob/2024/10/28/forbes-daily-the-250-billion-influencer-economy-is-booming/ [https://perma.cc/8QP4-HCLC].

[2] 30 Creator Economy Platform Growth Statistics Every Marketer Should Know in 2026, Archive (Jan. 2, 2026), https://archive.com/blog/creator-economy-platform-growth-statistics [https://perma.cc/U4GU-P7VN].

[3] Michelle Faverio & Monica Anderson, For shopping, phones are common and influencers have become a factor, Pew Research Center (Nov. 21, 2022), https://www.pewresearch.org/short-reads/2022/11/21/for-shopping-phones-are-common-and-influencers-have-become-a-factor-especially-for-young-adults/ [https://perma.cc/9CR4-3VHH].

[4] Charlotte Godart, Copyrighting an Aesthetic: Intellectual Property in the Age of Online Influencers, Tucker Ellis (2024), https://www.tuckerellis.com/ip-tip-of-the-month-blog/copyrighting-an-aesthetic-intellectual-property-in-the-age-of-online-influencers/ [https://perma.cc/U2WZ-KAT9].

[5] Varvara Andreeva, Influencer and Celebrity Marketing in Branding (2024) (Master’s Thesis, Lappeenranta–Lahti University of Technology LUT), 34–35, https://lutpub.lut.fi/bitstream/handle/10024/168018/MastersThesis_Andreeva_Varvara.pdf?sequence=1 [https://perma.cc/TJ5A-TACT].

[6] Compl., Sydney Nicole LLC v. Alyssa Sheil LLC, No. 1:24-cv-423 (W.D. Tex. Apr. 22, 2024).

[7] Id., Exhibit A, at 49.

[8] Answer, Sydney Nicole LLC v. Alyssa Sheil LLC, No. 1:24-cv-423 (W.D. Tex. Aug. 5, 2024), at 2–3.

[9] Report and Recommendation of Magistrate Judge, Sydney Nicole LLC v. Alyssa Sheil LLC, No. 1:24-cv-423 (W.D. Tex. Nov. 15, 2024), at 3–4.

[10] Liz Brown, Bridging the Gap: Improving Intellectual Property Protection for the Look and Feel of Websites, 3 N.Y.U. J. Intell. Prop. & Ent. L. 310, 330.

[11] TrafFix Devices, Inc. v. Mktg. Displays, Inc., 532 U.S. 23, 29 (2001).

[12] Mastercrafters Clock & Radio Co. v. Vacheron & Constantin-Le Coultre Watches, Inc., 221 F.2d 464, 465–67 (2nd Cir. 1955).

[13] Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763 (1992).

[14] Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159 (1995).

[15] Blue Nile, Inc. v. Ice.com, Inc., 478 F. Supp. 2d 1240, 1245–46 (W.D. Wash. 2007).

[16] Brown, Bridging the Gap, at 334.

[17] U.S. Const. art. I, § 8, cl. 8.

June 8, 2026 by
Uncategorized

Religious Expression and Public Schools after Kennedy v. Bremerton

The Establishment Clause of the First Amendment provides that “Congress shall make no law respecting an establishment of religion.” [1] Together with the Free Exercise Clause, which prohibits laws “prohibiting the free exercises” of religion, the Religion Clauses reflect a constitutional commitment to both religious liberty and governmental neutrality.[2] The Supreme Court (the “Court”) has long stated that the Establishment Clause “mandates governmental neutrality between religion and religion, and between religion and nonreligion.”[3]

For decades, the Court consistently invalidated school practices that integrated prayer into official school activities or conveyed the appearance of state endorsement of religion.[4] But in Kennedy v. Bremerton School District, the Court rejected decades of Establishment Clause doctrine and replaced the familiar endorsement test with what it described as a “historical practices and understandings” approach.[5] The Court centered its inquiry on coercion and concluded that because there was no evidence that students were required to pray or that participation was compelled, no constitutional violation occurred. [6]

The decision sparked divided reactions. Some viewed it as a victory for religious liberty and free speech.[7] Others criticized it as destabilizing church-state separation in public schools.[8] At the very least, the decision leaves school administrators wondering what they are supposed to do.

The Facts of Kennedy

Understanding the policy consequences of Kennedy requires understanding the facts. Joseph Kennedy was a high school football coach in Bremerton, Washington.[9] For years, he engaged in brief, silent prayers at the 50-yard line immediately following games.[10] Over time, some players began joining him.[11] The practice occasionally included motivational religious messages and attracted media attention.[12]

The school district grew concerned that the prayers, occurring on the field immediately after the games and in view of students and spectators, could be perceived as school endorsement of religion.[13] Administrators directed Kennedy to refrain from engaging in demonstrative religious activity while on duty.[14] Kennedy refused.[15] He continued to pray at midfield after games and was ultimately placed on administrative leave and not rehired.[16]

Kennedy sued, alleging violations of his rights under the Free Exercise Clause and the Free Speech Clause.[17] The Supreme Court sided with Kennedy. The majority characterized his prayers as “brief, quiet, personal religious observance” that occurred while he was not actively coaching players.[18] The Court rejected the school district’s Establishment Clause concerns and held that the Constitution did not require the district to suppress Kennedy’s private religious expression.

The majority also used the case to formally abandon the Lemon v. Kurtzman framework and the endorsement test that had shaped Establishment Clause analysis for decades.[19] Instead, the Court instructed lower courts to interpret the Establishment Clause by reference to historical practices and understandings, with coercion as the central constitutional concern.[20]

The Special Constitutional Context of Public Schools

Historically, public schools have occupied a distinct position in Establishment Clause jurisprudence. Students are legally required to attend, coaches and teachers exercise evaluative and supervisory authority, and adolescents are uniquely susceptible to peer pressure and social conformity.[21] These structural realities have shaped the Court’s approach to school prayer cases.

For decades, the Court applied the three-pronged test from Lemon v. Kurtzman, which asked whether government action had a secular purpose, whether its principal effect advanced or inhibited religion, and whether it fostered excessive entanglement with religion.[22]

In Lee v. Weisman, the Court invalidated clergy-led prayer at a high school graduation, emphasizing that coercion in schools may be “subtle and indirect,” yet constitutionally significant. [23] Even when attendance at graduation was technically voluntary, the Court recognized that social pressure could amount to unconstitutional coercion.[24]

Similarly, in Santa Fe Independent School District v. Doe, the Court struck down student-led prayer before football games.[25] The Court reasoned that the school’s involvement in organizing and supervising the prayer created impermissible pressure on students to participate.[26] The key concern in both cases was the combination of school authority and social expectation.

These precedents reflected a recognition that coercion in public schools often operates through its structure.

The Shift in Kennedy

Kennedy altered this framework. The Court rejected reliance on the endorsement test and emphasized that historical practice and coercion now guide Establishment Clause analysis. The majority concluded that because students were not required to pray and because there was no clear evidence that playing time or team status depended on participation, no unconstitutional coercion occurred.[27]

The Court’s analysis focused heavily on the absence of documented complaints or explicit directives. [28] In doing so, it adopted a relatively narrow conception of coercion that is tied to overt compulsion rather than contextual pressure.

But in athletics, authority and visibility are harder to separate. Coaches influence playing time, leadership roles, and recommendations. Team cohesion and peer conformity may amplify that influence.[29] By concentrating on documented instances of explicit coercion, the Court arguably minimized the structural dynamics that have historically animated school prayer cases.

Public Policy Consequences

The doctrinal shift from endorsement to coercion carries significant public policy implications.

First, it raises evidentiary burdens. Students alleging religious pressure must now demonstrate something closer to explicit compulsion rather than contextual influence. Yet adolescents may be reluctant to complain about authority figures who control their opportunities. The absence of formal complaints does not necessarily indicate the absence of pressure.

Second, the decision creates uncertainty for administrators. School districts must balance employee Free Exercise and Free Speech rights with their constitutional obligation to avoid establishing religion. By rejecting the Lemon test and narrowing the coercion inquiry without providing a clear alternative framework, Kennedy leaves administrators without a predictable method for evaluating religious expression that falls short of overt compulsion but nonetheless implicates student vulnerability.

Third, the decision risks normalizing religious expression in highly visible school contexts. Public schools serve diverse populations, including students of minority faiths and students with no religious affiliation. When religious practice occurs in settings closely tied to school authority, it potentially may signal alignment with a particular faith tradition.

Conclusion

Kennedy v. Bremerton represents a significant change of Establishment Clause doctrine. By rejecting the endorsement test and centering coercion, the Court reshaped how religious expression in public schools will be evaluated going forward. However, replacing one framework with another did not eliminate the underlying constitutional tension.

If coercion is the governing standard, courts must recognize that coercion in public schools is often subtle, unreported, and embedded in hierarchy. Focusing only on documented instances of overt pressure risks overlooking the structural realities of adolescent life and institutional authority.

Religious liberty is strongest when participation is genuinely voluntary. Students should be free to join or abstain without fear of social or institutional consequence. The challenge after Kennedy is ensuring that the coercion framework remains sensitive to those structural realities.

[1] U.S. Const. amend. I.

[2] U.S. Const. amend I.

[3] McCreary Cty. V. Am. Civ. Liberties Union of Ky., 545 U.S. 844, 860 (2005).

[4] See Santa Fe Indep. Sch. Dist. V. Doe, 530 U.S. 290, 290 (2000). (invalidating prayer prior to football games); Schempp, 374 U.S. 203 (invalidating a statute requiring the recitation of Bible verses and Lord’s Prayer before class); Engel v. Vitale, 370 U.S. 421, 422 (1962) (invalidating a state-composed prayer for recitation in public school classrooms).

[5] Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 537 (2022).

[6] Id. at 543.

[7] Aislinn Comiskey, Kennedy v. Bremerton School District: A Touchdown and a Victory for Establishment Clause Jurisprudence, 31 Jeffrey S. Moorad Sports L.J. 67 (2024).

[8] See JOSEPH A. KENNEDY, Petitioner, v. BREMERTON SCHOOL DISTRICT, Respondent., 2022 WL 1032638.

[9] Kennedy v. Bremerton Sch. Dist., 869 F.3d 813, 815 (9th Cir. 2017).

[10] Id. at 816.

[11] Id.

[12] Kennedy, 597 U.S. at 529.

[13] Kennedy v. Bremerton Sch. Dist., at 816.

[14] Id.

[15] Id.

[16] Id. at 819.

[17] Id. at 819.

[18] Kennedy, 597 U.S. at 520.

[19] Id. at 510.

[20] Id. at 511.

[21] Id. at 530.

[22] Lemon v. Kurtzman, 403 U.S. 602 (1971).

[23] Lee, 505 U.S. at 593.

[24] Id. at 595.

[25] Santa Fe, 530 U.S. at 317.

[26] Id. at 311.

[27] Kennedy, 597 U.S. at 537.

[28] Id.

[29] JOSEPH A. KENNEDY, Petitioner, v. BREMERTON SCHOOL DISTRICT, Respondent., 2022 WL 1032788, at *5.

April 6, 2026 by
Uncategorized

Status of Federal Regulation and Legislation of Cryptocurrency

Cryptocurrency offers an alternative to traditional fiat currency and hard commodities like gold. The cryptocurrency market cap at the time of writing of this article is over $2.4 trillion dollars.[1] There are hundreds of different cryptocurrencies, from well-known ones like Bitcoin (which accounts for more than half of all cryptocurrency value) to little known ones like ViciCoin or Chia (which account for a fraction of a percent of all cryptocurrency value).[2] In 2024, approximately 7% of adults in the United States bought cryptocurrency or held it as an investment.[3] Only approximately 2% used it to buy something.[4] While there is not currently one overarching set of federal regulations for cryptocurrency, there are various federal and state laws that govern the use of cryptocurrency. This article will discuss the status of the current cryptocurrency regulations that exist at the federal level, what’s on the horizon for federal cryptocurrency legislation, and how these laws affect cryptocurrency use and markets.

Current Federal Cryptocurrency Regulation

 The Securities and Exchange Commission (SEC) regulates cryptocurrency under existing securities law. Cryptocurrency businesses must comply with federal money transmission laws under the Bank Secrecy Act (Title 31 of the United States Code).

Other federal agencies that regulate parts of cryptocurrency are the Commodity Futures Trading Commission (CFTC) which oversees digital assets as commodities, the Financial Crimes Enforcement Network (FinCEN) which requires anti-money laundering compliance for virtual currency businesses, and the Internal Revenue Service (IRS) which has established comprehensive tax reporting requirements effective 2025.

In July of 2025, Congress enacted the Guiding and Establishing National Innovation for U.S. Stablecoins (GENIUS) Act, establishing a federal framework for payment stablecoins.[5] Stablecoins are pegged to a stable asset, usually the United States dollar, and are backed by reserves. Examples are Tether or USD Coin. In general, the GENIUS Act framework provides supervisory and enforcement authority over stablecoins.

Notably, stablecoins are not the common, well-known cryptocurrencies like Bitcoin. This is because permitted payment stablecoins are not treated as securities under federal securities laws. In other words, the largest piece of current federal legislation related to cryptocurrency doesn’t cover the vast majority of standard transactional cryptocurrency. Future cryptocurrency legislation aims to fill existing gaps at the federal level.

Potential Future Federal Cryptocurrency Legislation

The Digital Asset Market Clarity Act (or the CLARITY Act) passed the House of Representatives in July 2025, establishing frameworks for regulatory jurisdiction between the SEC and CFTC. It was received in the Senate in September 2025 and as of February 2026 continues to be discussed at Senate Banking Committee meetings.[6]

The bill proposes to establish “the United States as the crypto capital of the world.”[7] It seeks investor protections and tools for law enforcement, as well as protect Americans and keep fueling financial innovation in America.[8] The act aims to protect Americans by delivering transparency, oversight, and accountability. It gives a clear legal outline for the crypto industry and who regulates what between the SEC and CFTC. It would enable innovation while ensuring compliance. Finally, it boasts appropriate sanction framework and gives new tools to law enforcement to deal with illicit finance activity.

This proposed legislation as currently written was not favored by the industry. Cryptocurrency companies argue that the legislation continues to favor traditional banking and finance institutions.[9] The largest point of contention is the restrictions on stablecoin rewards—should stablecoins be able to pay interest-like rewards. Banks argue that if this were allowed, it would decrease the amount of deposits held in the traditional banking system. This of course is exactly what the cryptocurrency industry wants. In fact, it’s one of the goals of cryptocurrency, to move away from traditional banking.

How would this work? If a user held stablecoin and was able to receive interest from that holding, the argument is that the holding would look more like a savings account or money market fund. Banks depend on deposits to function and to make a profit. Deposits also increase the ability to lend and lack of deposits could potentially stress the banking industry. Because, as traditional banks argue, the stablecoins would function as savings accounts or similar to them, they should have to be subject to the same regulation that banks face.

The counterargument from the cryptocurrency industry is that banning these interest rewards really only favors the banks, not the consumer. Plus, if the United States bans stablecoin rewards, users will just move to offshore platforms that offer them anyway. This would decrease the amount of regulatory control that the government has over funds and would overall counter thegoals of benefitting and protecting Americans.

Effect of Federal Cryptocurrency Regulation and Legislation on Use and Markets

As it stands, the GENIUS Act is what exists at the federal level regulating cryptocurrency, but again, it regulates specifically stablecoins. Stablecoins act as regulated digital dollars, a way to store value in an asset that is tied directly to treasury bills or the United States dollar. It defines who can issue stablecoins and in general makes them safer but less flexible and innovative than a cryptocurrency should aim to be.

The CLARITY Act would have the effect of regulating the entire cryptocurrency ecosystem. It would have three main effects. First, it would define when a token is a security or a commodity. A security is an investment contract (like stocks, bonds) regulated by the SEC. According to the Supreme Court’s “Howey Test” a transaction is a security if it is (1) an investment of money; (2) in a common enterprise; (3) with an expectation of profit; and (4) based on the efforts of others.[10] A commodity is something like gold, oil, or wheat, and is regulated by the CFTC. Depending on the classification, different regulations would apply for registration, disclosures, and oversight obligations. In general, securities are much more heavily regulated. Second, it would create a registration path for crypto exchanges, such as Coinbase, giving them added legitimacy as a registered entity recognized by the federal government. Third, it would impact decentralized finance efforts by making overall innovation slower because of red tape hurdles.

Largely, cryptocurrency use remains largely untouched at the basic user level. Cryptocurrency providers and exchanges are the ones that are regulated, and user consumers are left to operate as they do in other contexts. When legislation favors or disfavors something in any context, a related stock or market increases or decreases. The same is true of cryptocurrency. The market remains volatile and if the CLARITY Act passes, the markets will adjust according to whatever the legislation ends up including.

Cryptocurrency is, in part, about rebelling against who controls a store of value, who controls currency. It’s about providing a decentralized financial system that can be independently verified. Future federal cryptocurrency regulation will directly effect cryptocurrency and if this industry stays alive.

Conclusion

 Cryptocurrency is hefty: a $2.4 trillion dollar market can’t be pushed aside. Current federal regulation, the GENIUS Act, focuses on regulating stablecoins. That is an indicator that legislation regulating the entire cryptocurrency ecosystem will eventually be passed. Future federal legislation, the CLARITY Act, aims to do that. The contents of that law will have effects that determine the ultimate future of cryptocurrency.

[1] Cryptocurrency Prices Today By Market Cap, Forbes, https://www.forbes.com/digital-assets/crypto-prices/?page=1.

[2] Id.

[3] Federal Reserve, Economic Well-Being of U.S. Households in 2024, Federal Reserve Research & Analysis (May 2025), https://www.federalreserve.gov/publications/files/2024-report-economic-well-being-us-households-202505.pdf.

[4] Id.

[5] Public Law 119–27 PL 119–27 [S 1582] July 18, 2025 GUIDING AND ESTABLISHING NATIONAL INNOVATION FOR U.S. STABLECOINS ACT

 

[6] 119th CONGRESS, 1st Session United States Library of Congress HR 3633 Reported in House.

[7] The Facts: The CLARITY Act, United States Senate Committee on Banking, Housing, and Urban Affairs (Jan. 13, 2026), https://www.banking.senate.gov/newsroom/majority/the-facts-the-clarity-act.

[8] Id.

[9] Micah Zimmerman, Senate Banking Committee Postpones CLARITY Act Markup After Crypto Industry Backlash, Bitcoin Magazine (Jan. 15, 2026), https://bitcoinmagazine.com/news/senate-banking-committee-clarity-act.

[10] SEC v. W.J. Howey Co., 328 U.S. 293 (1946).

March 26, 2026 by
Uncategorized

Executive Order Suspending FCPA Enforcement: An Unconstitutional Overreach

Congress passed the Foreign Corrupt Practices Act (FCPA) in 1977.[1] The FCPA governed domestic business conduct with foreign government officials in foreign markets.[2] Generally, the FCPA prohibits bribes to foreign officials to obtain or retain business.[3] The statute applies to publicly traded companies and their agents.[4] To do so, the FCPA requires issuers to maintain accurate books and records to disclose potential payments to foreign officials.[5] In 2024 alone, the Department of Justice (DOJ)  and the Securities and Exchange Commission (SEC) obtained over $1.28 billion in total fines and penalties relating to the FCPA.[6]

On February 10, 2025, President Donald Trump issued an executive order suspending enforcement of the FCPA for 180 days.[7] The Executive Order, Pausing Foreign Corrupt Practices Act Enforcement to Further American Economic and National Security, exceeds presidential authority. While the executive branch enjoys broad discretion in how it enforces federal law, the wholesale suspension of enforcement of the FCPA for 180 days exceeds the President’s Article II authority. The Constitution’s Take Care Clause says the president “shall take Care that the Laws be faithfully executed.”[8] By ordering the Department of Justice to halt all new FCPA cases and reorient ongoing ones, the president has effectively nullified a statute enacted by Congress, and therefore, has exceeded his presidential authority.

Youngstown Sheet provides that when the president acts contrary to Congress’s expressed will, his power is “at its lowest ebb.”[9] Here, Congress explicitly enacted the FCPA to combat foreign bribery by American companies.[10] Legislative power rests with Congress, not the president. As the Constitution states, “All legislative Powers herein granted shall be vested in a Congress.”[11] The statute establishes no presidential authority to suspend enforcement.[12] By pausing all new investigations absent of approval from the Attorney General, the executive order directly contravenes Congress’s design and therefore falls squarely into Youngstown’s category three.[13] In other words, President Trump’s executive order contradicts the express and implied will of Congress.

The executive order cannot simply cite prosecutorial discretion, foreign affairs powers, and national security to mask its unconstitutionality. Prosecutorial discretion cannot be read so broadly as to permit the categorical nullification of an entire class of statutory enforcement. Nor can foreign affairs powers displace clear congressional legislation. The executive order ensures that the FCPA is not enforced in a manner that “harms American economic competitiveness and, therefore, national security.”[14] The president cannot broadly, without foundation, invoke national security as an excuse to not “Care that the Laws be faithfully executed.”[15] Congress had already spoken on the issue when Congress passed the FCPA in 1977.[16] The President may not contradict Congress by invoking vague “national security” rationales. This is not permitted under Youngstown’s category three.[17] If “national security” were enough, any president could decline to enforce laws passed by Congress that he or she disagrees with simply by asserting that strict enforcement undermines security.

The Deputy Attorney General issued new enforcement guidelines in its June 2025 memorandum, concluding the 180-day suspension.[18] The memorandum redirected prosecutors to focus on cartel-linked corruption, strategic infrastructure, and “serious misconduct” while avoiding “routine business practices.”[19] These guidelines fundamentally reshape how the FCPA will be enforced. They even require that all new investigations be approved by the Assistant Attorney General or higher.[20] This narrowed the statute to fit the President’s policy views. This is not faithfully executing the law. It is presidential rewriting of the law.

The Department of Justice admittedly has broad discretion in its enforcement based on its limited resources. The government cannot prosecute every violation of the FCPA. Prosecutorial discretion is arguably murky. At a minimum, an executive order categorically suspending a congressionally passed statute from any enforcement for 180-days is unconstitutional. The harder question is whether the new enforcement guidelines simply constitute prosecutorial discretion based on the Department of Justice’s limited resources. The correct analysis is whether the new guidelines set out by the Justice Department’s enforcement of the FCPA are fundamentally different from the FCPA’s text and original intent passed by Congress. If these two things are so fundamentally different, then this is no longer prosecutorial discretion, but executive rewriting of the law that infringes Congress’s legislative authority. In other words, if the DOJ changes the enforcement of FCPA so fundamentally, then prosecutorial discretion is no longer part of the equation. It is no longer discretionary if a law is, in effect, rewritten. The new FCPA enforcement guidelines focus on cartel activity, which is fundamentally different than the FCPA’s original purpose, to have a statutory scheme to deal with companies bribing foreign officials.[21]

Overall, the executive order exceeds presidential authority. In other words, the president is exercising legislative authority instead of executing the law. By halting enforcement of the FCPA, President Trump exceeded his Article II authority and violated the Take Care Clause. The DOJ memorandum implementing the order confirms this overreach by substituting presidential policy preferences for congressional command. Legislative power rests with Congress, not the president. Therefore, Executive Order 14209 is unconstitutional.

[1] Foreign Corrupt Practices Act, 15 U.S.C. §§ 78dd-1–78dd-3 (2024).

[2] Mike Koehler, The Story of the Foreign Corrupt Practices Act, 73 Ohio St. L. J. 929, 929 (2012).

[3] Foreign Corrupt Practices Act (FCPA), U.S. SEC (Sep. 13, 2023), https://www.sec.gov/enforcement/foreign-corrupt-practices-act [https://perma.cc/5DFR-QPG2].

[4] Id.

[5] Id.

[6] Cuneyt A. Akay, FCPA Year in Review 2024, GreenbergTraurig (Jan. 29, 2025), https://www.gtlaw.com/en/insights/2025/1/fcpa-year-in-review-2024 [https://perma.cc/3E5B-D6GG]; SEC Enforcement Actions: FCPA Cases, U.S. SEC (July 21, 2025), https://www.sec.gov/about/divisions-offices/division-enforcement/enforcement-topics-initiatives/sec-enforcement-actions-fcpa-cases [https://perma.cc/7EXP-CTCY].

[7] Exec. Order No. 14209, 90 Fed. Reg. 9587 (Feb. 10, 2025).

[8] U.S. Const. art. II, § 3.

[9] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring).

[10] See generally Koehler, supra note 2.

[11] U.S. Const. art. I, § 1.

[12] 15 U.S.C. §§ 78dd-1–78dd-3.

[13] Youngstown Sheet & Tube Co., 343 U.S. at 637.

[14] Exec. Order No. 14209, 90 Fed. Reg. at § 1.

[15] U.S. Const. art. II, § 3.

[16] 15 U.S.C. §§ 78dd-1–78dd-3.

[17] Youngstown Sheet & Tube Co., 343 U.S. at 637.

[18] Memorandum from Deputy Att‘y Gen. Todd Blanche to Head of Crim. Dep‘t (June 9, 2025), https://www.justice.gov/dag/media/1403031/dl?inline [https://perma.cc/ZF4F-JC5B].

[19] Id.

[20] Id.

[21] See generally Koehler, supra note 2.

February 12, 2026 by
Uncategorized

An Overlooked Crisis: Why Minnesota Must Reform Prison Dental Care

Dental care is a fundamental component of overall health, yet it remains one of the most overlooked areas in healthcare systems worldwide.[1] Within the Minnesota prison system, dental care can only be accurately described as a public health crisis.[2] While medical and mental healthcare receive some degree of attention in public policy discussions regarding inmate care, oral health is often dismissed as a secondary concern.[3] This reality exists despite overwhelming evidence that poor dental care is directly linked to serious health complications, including cardiovascular disease, diabetes, pneumonia, and other systemic conditions.[4] The mouth is not separate from the body; it is a crucial entry point that can indicate, and sometimes magnify, underlying medical issues.

The importance of dental care compared to its access among the general public is even more prominent in correctional facilities, where incarcerated individuals often enter with preexisting dental conditions due to a history of inadequate oral care. Studies have shown that the oral health of incoming inmates tends to follow the trends of people in lower socioeconomic groups of the general population, which, in a word, is bad.[5] These disparities correspond directly to the lack of preventative services, such as routine dental exams, which begin at adolescence, Between 2016 to 2021, there has been a 10% decrease in the percentage of low-income children and adolescents (ages 1-17) who had a past-year dental visit for preventative oral care.[6] This number has continued to decline steadily since, and signals a multitude of problems that may arise from this statistic alone.[7]

This trend is particularly concerning given the well-established “poverty-to-prison pipeline.” It is no secret that mass incarceration disproportionately affects marginalized communities. Approximately 80% of incarcerated individuals in the United States come from low-income communities, and 67% are minorities.[8] The systemic barriers that prevent people of these backgrounds from accessing dental care outside of prison do not magically disappear once they are behind bars. In fact, these barriers are aggressively reinforced by policies that enable the deprivation of incarcerated individuals of even the most basic healthcare needs, and are wholly ignored by those who put these systems into place.

In the State of Minnesota, the Department of Corrections contracts out for general physical health, mental health, eye health, etcetera, but does not have a contract for dental care.[9] This absence is not a mere oversight; it reflects a deeper, systemic failure to prioritize oral health as an essential component of medical care. Still, there are valid arguments as to how privatized healthcare contracts in prisons often lead to poor oversight and diminished quality of care[10], but at the very least, other aspects of prison healthcare have a basic framework whereas dental care is left without even the semblance of a structured system.

The consequences of this neglect are grim. Incarcerated individuals often wait months or even years for dental treatment, enduring severe pain and the progression of preventable conditions. In many cases, the only solution offered is tooth extractions rather than restorative treatments such as fillings, crowns, or root canals.[11] This reflects a broader pattern in prison healthcare: quick, cost-cutting measures take precedence over comprehensive, patient-centered care. The result is a cycle of suffering in which incarcerated individuals are forced to live with chronic pain and deteriorating health.

The overall failure to provide adequate dental care in Minnesota’s prisons constitutes a commonly overlooked infringement on the fulfillment of inmates’ basic human needs that is in desperate need of reform, however that may look. This is not to say that the state of Minnesota prison dental care is a blatant Constitutional violation, nor is it to say that simple policy reform is going to get the job done. No, the point is that despite Eighth Amendment protections and empty promises of policy redress, what is happening in Minnesota prisons is wrong and that truth needs to be faced truth head-on. Once that is done, we can finally start to take true steps on the path towards solving this atrocity by treating human beings as such.

Among the many obstacles preventing incarcerated individuals from receiving proper healthcare, financial barriers stand out as particularly egregious. In Minnesota prisons, incarcerated individuals are required to pay a $5 copay for each medical visit, including requests to see a nurse or doctor.[12] While this amount may seem small outside prison, it poses a significant burden for those earning as little as $0.25 per hour[13]. This system discourages many from seeking medical care, forcing them to endure illnesses or injuries rather than depleting their already limited financial resources. Some exceptions exist, such as for chronic care visits or emergencies, but for many incarcerated individuals, the copay system creates a major barrier to accessing necessary healthcare and only reinforces the class system endured by free citizens.

A powerful research report put forth in 2018 by the Voices for Racial Justice gathered an abundance of data on healthcare in Minnesota prisons, which includes barriers to adequate health, health impacts of incarceration, and an overall reflection of voices in the community.[14]  This report explained how the DOC uses the system of copayments, where “[o]ne sick charge of $5.00 can cost a person who is incarcerated 20 hours of work if they are being paid 0.25 per hour.”[15] An anonymous inmate participating in the research report also brought forward the point that when an incarcerated individual has a health complication, it often requires being seen more than once:

How are you gonna afford a five, or 10, or $15 copay. That’s ridiculous. Especially, what if your thing is not resolved, and you need to keep going back and keep paying those copays, so it’s absolutely not affordable.[16]

This financial strain leads many incarcerated individuals to forgo medical and dental visits entirely, allowing minor health concerns to escalate into severe, untreated conditions.[17]

Despite repeated calls for reform, Minnesota’s Office of the Legislative Auditor (“OLA”), the entity responsible for reporting audits, evaluations, and investigations of state programs to the Minnesota Legislature, has done little to address these concerns. The OLA’s most recent comprehensive report on Minnesota prison healthcare is over ten years old, from 2014[18], and rather than calling for systemic change, the OLA merely updated its report to state that the DOC should ensure that “copayment policies are well understood by facility staff and consistently applied.” [19] This unclear response completely ignored the concerns brought forward by the people who are being affected by the copay policy daily, the inmates.

While medical care in Minnesota prisons is already inadequate, the situation for dental care is even more alarming. The DOC’s only formal policy regarding dental care is limited to a single vague statement, “A Minnesota-licensed dentist provides and/or directs responsive, clinically appropriate emergency, urgent, and routine dental care to offenders and residents.”[20] Unfortunately, Minnesota caselaw and first-hand accounts from inmates make it known that the DOC is turning its cheek to this statement, leading to delays and outright denials of treatment.[21] Preventative services, such as routine cleanings and checkups, are scarce, and many inmates report being left to endure prolonged pain before receiving any form on intervention.[22]

The DOC has a separate policy stating that a medical, dental, mental health, and sexual assault risk screening must occur within 24 hours of a person’s arrival at a correctional facility.[23] And while it has been generally accepted that these initial screenings do timely occur, the issue is in the follow-up, where one formerly incarcerated person reported that the DOC “definitely need[s] to get rid of that two year wait for dental check-ups. That’s outrageous. Oral health impacts all of the other health, so you got cats running around with poor oral hygiene.”[24] In practice, access to follow-up dental care in Minnesota’s prisons is an uphill battle. Incarcerated individuals must submit a formal request to see a dentist, a process that can take weeks or months before an appointment is granted.[25] And even when a visit is approved, the range of available treatments is often restricted to the most basic procedures.[26] Fillings, root canals, and other restorative treatments are often denied in favor of extractions, reinforcing a system where pain management is prioritized over long-term oral health.[27]

Ultimately, improving prison dental care in Minnesota requires a creative approach that combines legislative action, advocacy efforts, and systemic reforms. The ongoing efforts of legal and public health organizations, combined with policy initiatives such as increased funding and community-based care, offer a path forward toward a more humane and effective system. By prioritizing oral health as an essential component of overall healthcare, Minnesota can take meaningful steps toward ensuring that incarcerated individuals receive the care they need, promoting both justice and public health.

[1] Priyanka Gudsoorkar, BDS, M.B.A., M.P.H & Sujay A. J. Mehta, D.M.D., MPH, Revitalizing the Oral Health Agenda: A Call for Integrated Health Policy and Practice, Academy Health (July 16, 2024), https://academyhealth.org/blog/2024-07/revitalizing-oral-health-agenda-call-integrated-health-policy-and-practice-0.

[2] See discussion supra Part II.

[3] See discussions supra Parts III.B, IV.A.

[4] See Robert H. Shmerling, MD, Gum disease and the connection to heart disease, Harvard Health Publishing (Oct. 8, 2024), https://www.health.harvard.edu/diseases-and-conditions/gum-disease-and-the-connection-to-heart-disease; see also Mayo Clinic Staff, Oral health: A window to your overall health, Mayo Clinic (Mar. 14, 2024), https://www.mayoclinic.org/healthy-lifestyle/adult-health/in-depth/dental/art-20047475.

[5] Health Disparities in Oral Health, Center for Disease Control (May 15, 2024), https://www.cdc.gov/oral-health/health-equity/index.html.

[6] Id.

[7] Preventative Dental Visit – Children in United States, America’s Health Rankings (2022–2023), https://www.americashealthrankings.org/explore/measures/prev_dent_care_overall.

[8] Tihanne Mar-Shall, The Poverty to Prison Pipeline, L. J. for Soc. Just., Mar. 29, 2021, https://lawjournalforsocialjustice.com/2021/03/29/the-poverty-to-prison-pipeline/.

[9] See MN Department of Corrections, Fact Sheet: Medical and Nursing Services, www.MN.Gov (Dec., 2019), https://mn.gov/doc/assets/Medical%20and%20Nursing%20Services_tcm1089-309010.pdf.

[10] See Mar-Shall, supra note 8.

[11]  Keith Crow, Why doesn’t Rush City prison have a dentist?, Spokesman Reporter (Apr. 17, 2024), https://spokesman-recorder.com/2024/04/17/prisoner-dental-care-mcf-rush-city/.

[12] Minn. Stat. § 243.212.

[13] Filiberto Nolasco Gomez, An Update on Prison Labor in Minnesota, Workday Magazine (Jan. 5, 2022), https://workdaymagazine.org/an-update-on-prison-labor-in-minnesota/.

[14] Voices for Racial Justice, Unfit for Human Consumption: Health and Healthcare in Minnesota Prisons, Minnesota Legislative Reference Library (May 2018), https://www.lrl.mn.gov/docs/2019/other/190451.pdf.

[15] Id. at 40.

[16] Id.

[17] Id.

[18]Office of the Legislative Auditor, supra note 12.

[19] Voices for Racial Justice, supra note 20, at 41.

[20] Minnesota Department of Corrections, Dental Services, § 500.055 (2018).

[21] Voices for Racial Justice, supra note 20, at 43.

[22] Voices for Racial Justice, supra note 20, at 43.

[23] Minnesota Department of Corrections, Incarcerated Person Intake Screening and Processing, § 202.040 (2024).

[24] Voices for Racial Justice, supra note 20, at 43.

[25] Voices for Racial Justice, supra note 20, at 43.

[26] See Keith Crow, supra note 11.

[27] See Keith Crow, supra note 11.

 

 

November 7, 2025 by
Uncategorized

THE DEATH PENALTY AND CATHOLIC SOCIAL TEACHING: A CONTEMPORARY ANALYSIS

The death penalty remains one of the most contested moral and legal issues in American society. Catholic Social Teaching (CST), rooted in the sanctity of human life, justice, and the common good, has evolved significantly on this Historically, the Church supported capital punishment as consistent with natural law and Scripture.[1] However, in 2018, Pope Francis declared the death penalty “inadmissible,” emphasizing every human’s inviolable dignity.[2] This development reflects legitimate doctrinal progression, not contradiction. Examining capital punishment through CST principles, including human dignity, restorative justice, the role of the state, and evolving papal teaching, demonstrates that abolition best serves justice and the common good.

The death penalty, which is the state-sanctioned execution for capital offenses, remains an evolving legal and moral debate given its irreversible nature.[3] The U.S. Supreme Court has long upheld capital punishment as constitutionally permissible, though subject to evolving standards of decency.[4] In Furman v. Georgia, 408 U.S. 238 (1972), the death penalty was temporarily halted due to its arbitrary and discriminatory application.[5] It was reinstated in Gregg v. Georgia, 428 U.S. 153 (1976), under stricter procedures.[6] Subsequent rulings barred execution for juveniles and individuals with intellectual disabilities.[7]Currently, there are 27 states in the United States that authorize capital punishment for crimes such as murder, treason, or assassinating federal officials.[8]

 

For centuries, the Catholic Church upheld the state’s right to impose the death penalty as an act of retributive justice, grounded in Scripture, tradition, and natural law. In recent decades, however, Church leaders have increasingly narrowed the legitimate application of the death penalty.  The Church’s early stance, rooted in passages like Genesis 9:6 and Romans 13:4, accepted the state’s authority to punish with death.[9] Genesis teaches that “whoever sheds the blood of man, by man shall his blood be shed,” while Romans depicts the state as God’s[10] Though often cited to justify capital punishment, alternative interpretations suggest Genesis instead implies that God alone holds ultimate authority to judge, challenging the traditional interpretation[11]

Early Church figures held varying views on capital punishment. St. Clement of Alexandria justified execution for those deemed “incurable,” while St. Augustine acknowledged the state’s authority but urged mercy.[12] This tension set the stage for modern reform. Pope St. John Paul, who in Evangelium Vitae (1995) urged that executions be “rare, if not practically nonexistent,” given modern means to protect society.[13] Pope Benedict XVI advanced this focus on human dignity, supporting abolition efforts.[14] This development culminated under Pope Francis’s 2018 Catechism revision, which declared that the death penalty is “inadmissible” as an affront to human dignity.[15]

Central to CST is the principle that every human is created in God’s image with inherent dignity that cannot be forfeited, even through sin or crime.[16] Pope John Paul II affirmed that “not even a murderer loses his personal dignity,” a view echoed in the 2018 revised Catechism, which teaches that “the dignity of the person is not lost even after the commission of very serious crimes.”[17] Pope Francis reiterated in Fratelli Tutti that denying dignity to criminals denies it to everyone.[18] These teachings undermine moral justification for executions, which permanently eliminates the chance for redemption.

While the state has a duty to uphold the common good, modern penal systems can protect society without taking life.  The Catechism continues to acknowledge that “preserving public order and the safety of persons” is a legitimate function of punishment.[19] While the state has a duty to protect the common good, this may no longer include the death penalty as a proportionate punishment.

A related CST principle, the preferential option for the poor, underscores how the death penalty disproportionately affects marginalized communities.[20] Avery Cardinal Dulles, an influential American Catholic theologian, identified several concerns regarding capital punishment, citing jury bias and inadequate legal defense for poor and uneducated defendants.[21] The U.S. bishops have also condemned capital punishment as both a life and racial justice issue, calling for its abolition in solidarity with the vulnerable[22]

The Catholic Church’s position on capital punishment has evolved, reflecting continuity in moral principles while responding to contemporary realities. Traditionally, however, the Church affirmed the state’s right to impose capital punishment as a means of retributive justice, consistent with classical natural law theory.[23] A clear contradiction in the Catechism gives rise to scholarly arguments that the church has not, and cannot, change its traditional teaching, as it explicitly references the fifth commandment, which forbids the intentional killing.[24]

Catholic scholars, Edward Feser and Joseph Bessette, maintain that Genesis 9:6 supports the state’s authority to impose death for grave crimes.[25] Recent magisterial developments, however, have shifted to prioritize the sanctity and dignity of every human life, calling for the abolition of the death penalty in modern society. Sister Renée Mirkes similarly argues that the Church’s essential teaching remains intact while its application is shaped by cultural and historical realities.[26] Pastors thus have a duty to exercise prudence, considering modern injustices such as racial bias, inadequate legal counsel, and wrongful convictions.

This development presents a challenge for Catholic legal professionals, as they are obliged not only by oath and professional commitment, but they are also to adhere to their church’s teaching on moral issues.[27] While the U.S. Constitution continues to permit the death penalty, many Catholic judges, including the late Justice Antonin Scalia, have struggled with reconciling personal belief and professional duty.[28] Scalia questioned how a Catholic judge might impose the death penalty despite moral opposition: “How, as a Catholic judge, can he participate in the process of imposing the death penalty when the Church says it’s immoral to do so?”[29] The Church ultimately urges the faithful not merely to tolerate current legal frameworks but to actively work for change.

The Church’s rejection of capital punishment is not a break from tradition but a fulfillment of it. Grounded in human dignity, CST recognizes that justice and mercy cannot coexist with killing as punishment. The Church’s evolution mirrors society’s moral progress toward safeguarding life and promoting rehabilitation. For Catholic legal professionals and citizens alike, the moral imperative is clear: uphold the sanctity of life, advocate for justice that heals, and build a society where redemption remains possible for all.

[1] University of St. Thomas – Minnesota, Catholic Social Teaching – Toward Justice and Healing (Blog), https://blogs.stthomas.edu/toward-justice-and-healing/category/catholic-social-teaching/, (last visited Oct. 23, 2025).

[2] Catechism of the Catholic Church ¶ 2266-2267, VATICAN (1993),

https://www.vatican.va/content/catechism/en/part_three/section_two/chapter_two/article_

5/i_respect_for_human_life.html.

[3] Death Penalty, Legal Info. Inst., https://www.law.cornell.edu/wex/death_penalty (last visited Apr. 12, 2025).

[4] Id.

[5] Id.

[6] Id.

[7] Legal Info. Inst., supra note 1, (citing Roper v. Simmons, 543 U.S. 551 (2005) (The Supreme Court banned the death penalty for juvenile offenders); Atkins v. Virginia, 536 U.S. 304 (2002) (The Supreme Court banned the death penalty for intellectually disabled criminals); Ring v. Arizona, 536 U.S. 584 (2002) (The Supreme Court required a jury, not merely a judge alone, to find an aggravating circumstance necessary to impose the death penalty)).

[8] Death Row in the United States, The Crim. Def. Team (Aug. 29, 2024), https://www.criminaldefenseteam.com/death-row-in-the-united-states/.

[9] Nathan Mastnjak, The Death Penalty and the Consequences of the Literal Meaning of Genesis 9:6, University of Notre Dame (Sept. 12, 2023).

[10] Genesis 1:27 (ESV); Romans 13:4-7 (ESV).

[11] Mastnjak, supra note 9.

[12] The Death Penalty and the Church’s Position, Centesimus Annus Pro Pontifice, https://capp-usa.org/the-death-penalty/ (last visited Apr. 13, 2025) (citing Augustine, Letter 134, para. 4; Stromata 1:27).

[13] Centesimus Annus Pro Pontifice, supra note 4, citing St. John Paul II, Evangelium Vitae, no. 56.

[14] Centesimus Annus Pro Pontifice, supra note 4.

[15] Congregation for the Doctrine of the Faith, Letter to the Bishops Regarding the New Revision of Number 2267 of the Catechism of the Catholic Church on the Death Penalty, Vatican (Aug. 1, 2018), https://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_cfaith_doc_20180801_catechismo-penadimorte_en.html.

[16] Genesis, supra note 10.

[17] St. John Paul II, Evangelium Vitae ¶ 56, Vatican (Mar. 25, 1995), https://www.vatican.va/content/john-paul-ii/en/encyclicals/documents/hf_jp-ii_enc_25031995_evangelium-vitae.html; Catechism of the Catholic Church ¶ 2267, Vatican (1993), https://www.vatican.va/content/catechism/en/part_three/section_two/chapter_two/article_5/i_respect_for_human_life.html.

[18] Pope Francis, Fratelli Tutti ¶ 269, Vatican (Oct. 3, 2020), https://www.vaticannews.va/en/podcast/fratelli-tutti/2022/09/fratelli-tutti-audiobook-english-chapter-seven-part-three.html.

[19] Catechism of the Catholic Church ¶ 2266, Vatican (1993), https://www.vatican.va/content/catechism/en/part_three/section_two/chapter_two/article_5/i_respect_for_human_life.html.

[20] Pope Francis, Evangelii Gaudium ¶ 198, Vatican (2013), https://www.vatican.va/content/francesco/en/apost_exhortations/documents/papa-francesco_esortazione-ap_20131124_evangelii-gaudium.html#The_special_place_of_the_poor_in_God%E2%80%99s_people.

[21] Renee Mirkes, The Catholic Response, Saint Paul VI Institute, 60 https://saintpaulvi.com/PDF/SrReneeArticles/DeathPenalty.pdf (last visited Apr. 1, 2025).

[22] Brian Bransfield, Open Wide Our Hearts: The Enduring Call to Love, United States Conference of Catholic Bishops (Oct. 29, 2024), https://www.usccb.org/resources/open-wide-our-hearts_0.pdf.

[23] Gerald Korson, The Catholic Case for Capital Punishment, Catholic Answers (May 1, 2017), https://www.catholic.com/magazine/print-edition/the-catholic-case-for-capital-punishment.

[24] Vatican, supra note 28 at ¶ 2269; Catholic Answers, supra note 35.

[25] Catholic Answers, supra note 35, (citing Joseph Bessette & Edward Feser, By Man Shall His Blood Be Shed: A Catholic Defense of the Death Penalty, Ignatius Press (2017)).

[26] VI Institute, supra note 33, at 56.

[27] Amy C. Barrett & John H. Garvey, Catholic Judges in Capital Cases, 81 Marq. L. Rev. 303 (1997-1998), https://scholarship.law.nd.edu/law_faculty_scholarship/527.

[28] VI Institute, supra note 33, at 57.

[29] VI Institute, supra note 33, at 57.

 

 

 

 

 

November 7, 2025 by
Uncategorized

DEI IN THE AGE OF TRUMP

At the start of his second term as president, Donald Trump released an attack on DEI policies within the federal government.[1] Universities, law firms, and organizations alike scrambled to preserve their values without jeopardizing their public image or federal funding. Is it possible that diversity, equity, and inclusion (DEI) initiatives – encouraged by the Biden administration – are illegal? This is what the Trump administration claims in his executive orders.[2] The Trump administration relies upon Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA), as grounds for ending DEI.[3] Recent rulings on Trump’s executive actions, however, call into question the legitimacy of this claim. Comparing recent decisions on recent Federal actions to the holding in SFFA suggests that DEI is not illegal.

Federal Education Funding and DEI

Executive Order 15141, “Ending Radical and Wasteful Government DEI Programs and Preferencing,” impacted Federal funding made available to several schools, including the University of St. Thomas.[4] As a result, three membership organizations, of which the University of St. Thomas is a member of, sought a preliminary injunction against the Secretary of Education.[5] The plaintiffs argued that the cancellation of the federal funding violated the Due Process Clause and the Administrative Procedures Act (APA).[6] Their Due Process claim failed because the plaintiffs could not show that the termination of the funding was directly tied to Executive Order 15141.[7] Still, the court granted a preliminary injunction because changed “agency priorities” did not justify rescinding the grants without proper procedure.[8]

Federal funding for St. Thomas’s education programs was restored due to the procedural flaws of the grant’s revocation.[9] Although the case was not decided on Due Process grounds, it is important to note that the new priorities of the Department of Education contradict previous grant application requirements. President of the University of St. Thomas, Rob Vischer, explained that the grant applications required showing how the programs would contribute to diversity in the teaching profession.[10] In their 2022 and 2023 grant application notices, the Department of Education specifically listed an increase in educator diversity as priorities for all three of the disputed grants.[11] Although the Due Process claim failed, emphasizing workforce diversity was not illegal in the past. In fact, the previous administration encouraged it.

Differentiating Affirmative Action from DEI initiatives

In SFFA, the Supreme Court ruled that affirmative action in school admissions was unconstitutional. In the opinion, Chief Justice Roberts differentiates between the unconstitutional affirmative action and other permitted methods for considering race.[13] He explained, “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”[14] This description accurately reflects DEI initiatives. DEI initiatives, encouraged by the Biden administration at the time of the opinion, are not the same as affirmative action. The Court specifically noted how Harvard’s admissions program aimed to maintain diversity by having racial preferences in the admissions process.[15] Affirmative action, however, is not the same as stating diversity as a priority in grant applications. Instead, DEI initiatives are goals that do not explicitly discriminate against applicants in any manner like the processes described in SFFA.

Ultimately, the grants for the University of St. Thomas were restored on procedural grounds.[16] Still, other cases challenging Trump’s attacks on DEI have succeeded on constitutional merits. For example, Perkins Coie LLP succeeded in challenging Trump’s attack on the law firm for its DEI policies on the basis of the First Amendment[17] Harvard also succeeded in maintaining Federal funding after the Trump administration threated to take away funds due to the institution’s promotion of DEI. The court determined that the Trump administration’s actions were retaliation for protected speech.[19]

 

Diversity, Equity, and Inclusion is not Affirmative Action

 

Trump’s attacks on DEI have not yet been successful. Beyond violating the Administrative Procedures Act, attacks on DEI will likely face several other barriers. Because DEI is an abstract statement of values, rather than a definitive act, broad stroke claims that DEI is “illegal” affirmative action will likely not succeed. Instead, DEI promotion will probably be considered constitutionally protected speech. That does not stop the Trump administration from shaping grant funding applications and altering institutional values. Until then, DEI will remain safe from retaliation and funding already granted remains secure. Regardless of the social, racial, or economic impacts of DEI initiatives, DEI policies are not an “illegal” form of affirmative action.

[1] Exec. Order No. 14151, 90 Fed. Reg. 8339 (January 20, 2025); Exec. Order No. 14173, 90 Fed. Reg. 8633 (January 21, 2025); Exec. Order No. 14230, 90 Fed. Reg. 11781 (March 6, 2025).

[2] Id.

[3] Exec. Order No. 14173, 90 Fed. Reg. 8633 (January 21, 2025).

[4] Gordon Severson, Dept. of Education cancels grant program, affecting 185 students at St. Thomas pursuing careers in special ed, Kare 11, https://www.kare11.com/article/news/local/dept-education-cancels-grant-program-st-thomas-special-ed/89-4e11c81d-1800-4d85-9b58-94f5b96206f3 (February 12, 2025, 9:32 PM).

[5] Am. Ass’n of Colleges for Teacher Educ. v. McMahon, 770 F. Supp. 3d 822 (D. Md. 2025).

[6] Id. at 840.

[7] Id.

[8] Id. at 855.

[9] Erin Alder, St. Thomas grants reinstated after Trump administration’s DEI cuts, Minn. Star Tribune (April 2, 2025, 2:15PM) https://www.startribune.com/st-thomas-grants-reinstated-after-trump-administrations-dei-cuts/601316701.

[10] Severson, supra note 4.

[11] Applications for New Awards; Teacher Quality Partnership Grant Program, 87 Fed. Reg. 10906-01 (February 25, 2022); Applications for New Awards; Supporting Effective Educator Development Program, 87 Fed. Reg. 19487-01 (April 4, 2022); Applications for New Awards; Teacher and School Leader Incentive Program, 88 Fed. Reg. 33592-02 (May 24, 2023).

[12] Students for Fair Admissions, Inc. v. President and Fellows of Harvard Coll., 600 U.S. 181, 230 (2023).

[13] Id. at 230-1.

[14] Id. at 230.

[15] Id. at 222.

[16] Supra note 5, at 855.

[17] Perkins Coie LLP v. U.S. Dep’t of Justice, 783 F.Supp.3d 105 (D.C. Cir. 2025).

[18] President & Fellows of Harvard Coll. v. U.S. Dep’t of Health & Hum. Servs., No. 25-CV-10910-ADB, 2025 WL 2528380 (D. Mass. Sept. 3, 2025).

[19] Id. at *26.

 

 

October 6, 2025 by